American Justice 2014. Garrett Epps

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СКАЧАТЬ memory has transformed Ronald Reagan into a cheering symbol of national esprit. But in life, he had been a polarizing figure. A rollback of civil-rights protections; an end to affirmative action; destruction of public-employee unions; deregulation of the economy and the environment; and sharp limits on (even abolition of) popular safety-net programs like unemployment compensation, Medicaid and Medicare, and even Social Security—these things were unpopular when Reagan championed them and no more popular in 2014 than they had been during the 1980s.

      The question that loomed over the Supreme Court and its Reaganite majority was whether their hearts would lead them to write Reaganism into the law and the Constitution, finding for their leader a judicial victory in death to compensate for the complete political victory that eluded him in life. If the court took that path, then Roberts’s “stability” might be postponed indefinitely.

      Chapter 1

      Balls and Strikes

      Chief Justice John Roberts

       McCutcheon v. Federal Election Commission

      John Roberts, nominee for chief justice of the United States, appeared before the Senate Judiciary Committee from September 12 to 15, 2005. Roberts promised the senators, “I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”

      In his statement, he referred by name to two and only two figures from American history. The first was his predecessor, William H. Rehnquist, for whom he had served as law clerk during OT1980. Rehnquist had died a week earlier after battling cancer. “His dedication to duty over the past year was an inspiration to me and I know to many others,” Roberts said. “I will miss him.” The second was Ronald Reagan, who had brought Roberts to Washington a quarter-century earlier to serve as a junior attorney in the White House Counsel’s office: “President Ronald Reagan used to speak of the Soviet Constitution,” he said. “And he noted that it purported to grant wonderful rights of all sorts to people, but those rights were empty promises because that system did not have an independent judiciary to uphold the rule of law and enforce those rights.”

      Read closely, the references to Rehnquist and Reagan cut against the promise of humility. Neither the former chief justice nor the former president was especially modest in his aspirations for the federal judiciary.

      Reagan’s legal priorities, as set by his chief legal adviser, Edwin Meese, had included reversal of Roe v. Wade; a cutback on federal civil rights statutes (Reagan had opposed the establishment of a federal Martin Luther King holiday and unsuccessfully vetoed the Civil Rights Restoration Act of 1988) and in particular on the Voting Rights Act of 1965 (which he once called “humiliating to the South”); an end to affirmative action; and greater judicial tolerance for religion in government and public life. Reagan used the power of the presidency to crush a public-employee union, the Professional Air Traffic Controllers’ Association, in 1981. Roberts, as a young Justice Department and later White House lawyer, was an enthusiastic part of the Reagan legal effort, writing memos critical of the Voting Rights Act and the Civil Rights Restoration Act, skeptically viewing the protection of women under the equal protection clause, questioning constitutional protections for children of undocumented aliens, and championing an end to race-conscious affirmative action in federal hiring and contracts.

      Reagan did get a chance to alter the court; he appointed three justices—Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy. He elevated Rehnquist, a Nixon appointee, to the chief’s seat. Even before the ascension of Reagan, Rehnquist had campaigned actively against the prevailing doctrine of the Warren and Burger courts. As an associate justice, he was known as “the Lone Ranger” for his willingness to take solo positions that seemed far to the right of prevailing law. As chief justice, Rehnquist was not the Lone Ranger any more. But nobody ever called him an umpire.

      In a 2006 interview, Roberts elaborated what he had learned from Rehnquist. “I think there’s no doubt that [Rehnquist] changed, as associate justice and chief,” Roberts said. “He became naturally more concerned about the function of the institution.” As Lone Ranger, Rehnquist repeatedly criticized the police-warning requirements imposed by the Warren court case of Miranda v. Arizona (“You have the right to remain silent,” etc.). But when, in 2000, the court had a chance to overturn the decision, Chief Justice Rehnquist not only voted to reaffirm it but wrote the opinion that did so. “He appreciated that it had become part of the law—that it would do more harm to uproot it,” Roberts said, “and he wrote that opinion as chief for the good of the institution.”

      Roberts said his approach differed from Rehnquist’s in one way, however: Rehnquist wanted to change the law and cared little about the margin. “I don’t remember [promoting unanimity] as a feature that Rehnquist stressed much.” Roberts said that he, by contrast, thought unanimity was good for the nation and the court. He hoped to foster “a culture and an ethos that says ‘It’s good when we’re all together.’”

      OT13 began with oral argument on a divisive, highly political case about campaign finance and concluded with two 5–4 decisions of divisive, highly political cases—one about public-employee unions and the other about contraceptive coverage under the ACA. In all three cases, the result furthered a high-profile objective of the Republican Party. In all three cases, the voting precisely followed the partisan makeup of the court, with the five Republican appointees voting one way and the four Democratic appointees bitterly dissenting. In all three cases, the chief voted with the hard-right position.

      In between came a number of cases resolved by a vote of 9–0, thus no doubt gladdening the chief’s heart. But underneath many of them was bitter disagreement about the reasoning of the unanimous result. The picture was so equivocal that the irrepressible Dahlia Lithwick, jurisprudence reporter for Slate, christened the new mood “fauxnanimity.”

      On the bench, Roberts is a somewhat contradictory figure. He is a far more genial presiding officer than Rehnquist, who (though unassuming in private) was a stern, even Saturnine presence on the bench. Largely stone-faced, Rehnquist allowed litigants no leeway when their time was completed. Roberts, by contrast, will frequently offer extra time for lawyers to complete their thoughts if the court has interrupted them often during oral argument.

      Roberts is also sensitive of decorum in his court. When then Solicitor General Elena Kagan appeared in front of the court to argue Robertson v. US ex rel Watson, Justice Scalia asked her whether a federal prosecutor was an agent of the executive or judicial branch. “Who would you like the person be an agent of, Justice Scalia?” the cheeky Kagan responded. Roberts intervened—“Usually we have questions the other way”—prompting Kagan to apologize. In 2012, during the last of the interminable three-day, six-hour argument on the constitutionality of the ACA, Scalia began to riff on an old Jack Benny routine in which a robber says to Benny, “Your money or your life.” The notoriously stingy comedian cannot decide. “You can’t refuse your money or your life,” Scalia said. “But your life or your wife’s, I could refuse that one.”

      “No,” the chief said, unsmiling. “Let’s leave the wife out of it.” When Scalia continued clowning, Roberts rebuked him sharply: “That’s enough frivolity for a while.”

      As a writer, however, Roberts is both self-assured and good-natured. He delights in the written word; his prose is crystalline, vivid, and often humorous. In a 2008 opinion, he dissented from the court’s denial of certiorari in a case about an arrest. He introduced the facts in the voice of a noir novelist: “North Philly, May 4, 2001. Officer Sean Devlin, Narcotics СКАЧАТЬ