The president asked: Erik Wemple, “ ‘That’s a Shocker’: Trump Ribs Press on Visit by Retiring Justice Anthony Kennedy,” Washington Post, June 27, 2018, washingtonpost.com/blogs/erik-wemple/wp/2018/06/27/thats-a-shocker-trump-ribs-press-on-visit-by-retiring-justice-anthony-kennedy/?noredirect=on&utm_term=.f5dd19d3bf0d.
Kennedy’s retirement: Jack Goldsmith, “Justice Kennedy’s Retirement Leaves the Future of U.S. Constitutional Law Entirely Up for Grabs,” Washington Post, June 27, 2018, washingtonpost.com/opinions/justice-kennedys-retirement-is-the-biggest-event-in-us-jurisprudence-in-at-least-15-years/2018/06/27/746db704-585d-11e7-b38e-35fd8e0c288f_story.html.
“where the rainbows”: Harvey H. Jackson III, The New Encyclopedia of Southern Culture (Chapel Hill: UNC Press Books, 2014), 16:5.
“that’s not really”: “Justice Elena Kagan at the Aspen Ideas Festival,” Aspen Ideas Festival, June 29, 2013, aspenideas.org/session/justice-elena-kagan-aspen-ideas-festival.
“My uncle Frank”: Jennifer Senior, “In Conversation: Antonin Scalia,” New York, Oct. 6, 2013, 22.
With nearly 900 members: “Honoring God by Honoring His Creatures,” International Order of St. Hubertus, iosh-usa.com.
“Scalia spent his last hours”: Amy Brittain & Sari Horwitz, “Scalia Spent Final Hours with Men from Society of Hunters,” Washington Post, Feb. 25, 2016, A8.
“why I am the way I am”: Jeffrey S. Sutton, “Antonin Scalia—A Justice in Full,” National Review, Feb. 29, 2016, nationalreview.com/article/432005/antonin-scalia-justice-full. Sutton’s comments are part of a collection of reminiscences.
county officials: The sheriff’s report in Case #16-066 can be read at assets.documentcloud.org/documents/2719258/Scaliareport.pdf.
Recent presidents: Art Caplan & Jonathan D. Moreno, “We Need Unbiased Medical Exams for Presidential Candidates,” Chicago Tribune, May 17, 2016, chicagotribune.com/news/opinion/commentary/ct-health-medical-exam-trump-clinton-president-perspec-0518-20160517-story.html. See also, for example, Linda Greenhouse, “Chief Justice Is Admitted to Hospital After Seizure,” New York Times, July 31, 2007, A11.
“Tony…this is my last big trip”: Josh Blackman, Unraveled: Obamacare, Religious Liberty, and Executive Power (New York: Cambridge University Press, 2016), 478.
“shrouded in mystery”: “Scalia’s Death Is Par for the Course,” DonaldJeffries, Feb. 17, 2016, donaldjeffries.wordpress.com/2016/02/17/scalias-death-is-par-for-the-course/.
“founded by the Bohemian”: Kit Daniels, “Scalia’s Death Linked to Bohemian Grove, Illuminati,” InfoWars, Feb. 25, 2016, infowars.com/scalias-death-linked-to-bohemian-grove-illuminati/.
“My friends, it’s Saturday”: Alex Jones, “Breaking: Justice Scalia Murdered?” Facebook, Feb. 13, 2016, facebook.com/alexanderemerickjones/videos/10153919891063459/.
“I wonder if”: Donald J. Trump, Twitter, Feb. 20, 2016, twitter.com/realDonaldTrump/status/701084443889381377?lang=en.
Few D.C. pundits: See Chloe Nurik, “Obama’s Funeral Attendance,” FactCheck, Mar. 17, 2016, factcheck.org/2016/03/obamas-funeral-attendance/.
“the most important”: “Exit Poll: Future Supreme Court Appointments Important Factor in Presidential Voting,” NBC News, Nov. 6, 2016, nbcnews.com/card/nbc-news-exit-poll-future-supreme-court-appointments-important-factor-n680381.
The usually less excitable: Adam Liptak, “Supreme Court Appointment Could Reshape American Life,” New York Times, Feb. 19, 2016, A1. The language got hotter when Justice Kennedy retired in June 2018. See Charlie Savage, “Trump Gets Chance to Influence American Life for Generations Through Supreme Court Pick,” New York Times, June 27, 2018, nytimes.com/2018/06/27/us/politics/trump-supreme-court-legacy.html. The anchor Brian Williams one-upped him on MSNBC by saying Kennedy’s replacement “could shape American life for half of a century or more.”
On abortion: Roe v. Wade, 410 U.S. 113 (1973).
And of course that: “National Vital Statistics Reports,” U.S. Department of Health and Human Services, Nov. 6, 2014, cdc.gov/nchs/data/nvsr/nvsr63/nvsr63_07.pdf.
In Congress: “The Fifteenth Congress by the Numbers,” Legistorm, legistorm.com/congress_by_numbers/index/by/house.html.
“A word is not a crystal”: Towne v. Eisner, 245 U.S. 418, 419 (1918).
“abstract and dimly”: Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2d ed. (New Haven, Conn.: Yale University Press, 1962), 26.
“The Constitution is”: Ibid., 98.
The best jurists: Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Knopf, 2005), 19.
It is a style: Justice Harlan didn’t have “II” at the end of his name, but because his grandfather—also a justice, who wrote the famous dissent in Plessy v. Ferguson—had the same name, he’s often referred to with the “II.” So, too, the first Harlan is sometimes referred to as John Marshall Harlan I.
“The only good Constitution”: Bruce Allen Murphy, “Scalia and the ‘Dead’ Constitution,” New York Times, Feb. 15, 2016, A19; Tasha Tsiaperas, “Constitution a ‘Dead, Dead, Dead’ Document, Scalia Tells SMU Audience,” Dallas Morning News, Jan. 28, 2013, dallasnews.com/news/highland-park/2013/01/28/constitution-a-dead-dead-dead-document-scalia-tells-smu-audience.
“A gift to America”: “Supreme Court Justice Sotomayor,” C-SPAN, Sept. 16, 2009, c-span.org/video/?286080-1/supreme-court-justice-sotomayor.
“If [the people] don’t like”: “Supreme Court Chief Justice Roberts,” C-SPAN, June 19, 2009, c-span.org/video/?286078-1/supreme-court-chief-justice-roberts.
“objective”: “Supreme Court Justice Alito,” C-SPAN, Sept. 2, 2009, c-span.org/video/?286073-1/supreme-court-justice-alito.
“paradox”: Martin H. Redish, “Trump Is Not Above the Courts,” New York Times, Mar. 16, 2017, nytimes.com/2017/03/16/opinion/trump-is-not-above-the-courts.html.
Apart from a presidential tweet: “Court-bashing,” at least at the state level, is increasingly in vogue in the age of Trump. Various politicians have proposed to punish judges who issue rulings the politicians don’t like—for example, on partisan gerrymandering. The proposals have ranged from cutting salaries to impeachment. See, for example, “Legislative Assaults on State Courts,” Brennan Center for Justice (2018), brennancenter.org/analysis/legislative-assaults-state-courts-2018. But these proposals have not been directed at the Supreme Court.
Courts stand against: Chambers v. Florida, 309 U.S. 227 (1940).
“The job is to decide”: See, for example, Brian Lamb, Susan Swain & Mark Farkas, eds., The Supreme Court: A C-SPAN Book Featuring the Justices in Their Own Words (New York: PublicAffairs, 2010), 124.
“The most important thing”: Alexander M. Bickel, The Unpublished Opinions of Mr. Justice Brandeis (Cambridge, Mass.: Harvard University Press, 1957), 17.
Though the Court: Memo to technicalists: Yes, there are some cases the Court must accept—for example, disputes between states. But in this book, appeals refers to the overwhelming majority of cases that arrive at the Court, over which the justices have complete discretion.
“We need more”: Donald J. Trump, Twitter, Mar. 28, 2018, twitter.com/realDonaldTrump/status/978932860307505153?lang=en.
Those critics: Ilya Shapiro, “Courts Shouldn’t Join the #Resistance,” Cato at Liberty, May 29, 2017, cato.org/blog/courts-shouldnt-join-resistance. See also, for example, Josh Blackman, “The Legal Resistance to Donald Trump,” National Review, Oct. 11, 2017, nationalreview.com/article/452506/donald-trump-courts-lawyers-legal-resistance.
Trump himself: Donald J. Trump, Twitter, Feb. 4, 2016, twitter.com/realDonaldTrump/status/827867311054974976?lang=en.
“immutable principles”: Richard A. Posner, “The Rise and Fall of Judicial Self-Restraint,” 100 California Law Review 519, 520 (2012).
“morphed into rule by”: Ibid.
Not surprisingly: Lincoln Caplan, “A Workable Democracy,” Harvard Magazine, Mar.–Apr. 2017, 50, harvardmagazine.com/2017/03/a-workable-democracy. See “Supreme Court,” 2000–2017, Gallup News, news.gallup.com/poll/4732/supreme-court.aspx.
most powerful: Bickel made this point, with irony, in the first sentence of his famous book: “The least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known.” Bickel, Least Dangerous Branch, 1.
They’re “gifts to you”: Guide for Counsel, Oct. term 2015, supremecourt.gov/casehand/guideforcounsel.pdf, 4.
“I am the chief justice!”: See oral argument in United States v. Gaubert, 499 U.S. 315 (1991), oyez.org/cases/1990/89-179. See also oral argument in Teague v. Lane, 489 U.S. 288 (1989), oyez.org/cases/1988/87-5259, in which a lawyer committed the sin of calling Rehnquist “Judge.”
“something different is”: “Supreme Court Chief Justice Roberts,” C-SPAN, June 19, 2009, c-span.org/video/?286078-1/supreme-court-chief-justice-roberts.
“You’re fired”: There are many versions of the story—for example, Eli Savit, Twitter, Sept. 18, 2017, twitter.com/EliNSavit/status/909817701950001152. Savit had clerked for O’Connor.
“I’m sure we could do”: “The Supreme Court: Home to America’s Highest Court, 2010 Edition,” C-SPAN, Dec. 20, 2010, c-span.org/video/?297213-1/the-supreme-court-home-americas-highest-court-2010-edition.
“Congressmen and Diplomats”: For example, see William O. Douglas to the Marshal of the Court, Oct. 30, 1972, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C. (hereafter “HAB-LOC”), Box 1404, Folder 8. Douglas wrote “it is inconceivable to me that the Congressmen and Senators would decline the very small, minute request” of allowing “occasional use of not more than 9 cars by Justices of the Court.” Much to-and-fro follows.
“our job is not to”: “A Conversation with Chief Justice John G. Roberts Jr.,” YouTube, Apr. 12, 2017, youtube.com/watch?v=TuZEKlRgDEg. The conversation was at RPI.
“We might end up talking”: Ibid.
most recently in a Trump travel ban case: Trump v. Hawaii, No. 17-965 (argued Apr. 25, 2018).
“Who do you hear”: “Homes of the Court,” Supreme Court Historical Society, supremecourthistory.org/history-of-the-court/home-of-the-court/.
“of dignity and importance”: Ibid.
“the place is almost”: Harlan Fiske Stone to his sons, May 24, 1935, quoted in Clare Cushman, Courtwatchers: Eyewitness Accounts in Supreme Court History (Lanham, Md.: Rowman & Littlefield, 2011), 110.
“the greatest show on earth”: Nan Rehnquist to William Brennan, William J. Brennan Papers, Manuscript Division, Library of Congress, Washington, D.C. (hereafter “WJB-LOC”), Part II: Correspondence File, 1946-1998, Box II: 114, Folder 2 (under “Members of the Court—Rehnquist”)(access by permission), n.d.
clanking pipes and fickle phones: For example, in the 1980s, Justice Thurgood Marshall complained to the chief justice about the “heavy drilling and hammering and pounding” just underneath his chambers. Later, Marshall wanted “to know why we can’t get a telephone that works,” to which the chief answered (by letter), “So do I!” Marshall to Warren Burger, Sept. 18, 1980, Thurgood Marshall Papers, Manuscript Division, Library of Congress, Washington, D.C. (hereafter “TM-LOC”), Box 33; Marshall to Burger, May 30, 1985, TM-LOC, Box 34.
search-and-seizure: Utah v. Strieff, 136 S. Ct. 2056 (2016).
“They are independent”: “Brutus,” perhaps Robert Yates, was an anti-Federalist. See Brutus, No. 15, Mar. 20, 1788, quoted in Sanford Levinson, Framed: America’s 51 Constitutions and the Crisis of Governance (New York: Oxford University Press, 2012), 273.
“While some of the tales”: John M. Broder & Carolyn Marshall, “White House Memos Offer Opinions on Supreme Court,” New York Times, July 30, 2005, A11.
“Chevron deference”: Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).
“Executive bureaucracies”: Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016).
“poses a grave threat”: Neil M. Gorsuch, “2016 Sumner Canary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia,” 66 Case Western Reserve Law Review 905 (2016).
“robbed Americans”: See, for example, Christopher Caldwell, “What Does Steve Bannon Want?” New York Times, Feb. 26, 2017, SR1.
the justices made no secret: For an excellent survey of such disdain in one term, 2011–12, see Pamela S. Karlan, “The Supreme Court, 2011 Term—Foreword: Democracy and Disdain,” 126 Harvard Law Review 1 (2012).
“Who wrote this statute?”: Perry v. Merit Systems Protection Board, 137 S. Ct. 1975 (2017).
Alito has such strong dislike: David G. Savage, “Obama and Biden Meet with Supreme Court Justices,” Los Angeles Times, Jan. 15, 2009, articles.latimes.com/2009/jan/15/nation/na-obama-roberts15.
That fabled phrase: Marbury v. Madison, 5 U.S. 137 (1803).
accepted wisdom since: See Cooper v. Aaron, 358 U.S. 1 (1958), a unanimous landmark ruling on the Court’s supremacy.
“accumulation” of federal power: Garco Construction v. Speer, No. 17-225 (2018) (dissenting from the denial of cert).
doctoral dissertation at Oxford: Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia (Princeton, N.J.: Princeton University Press, 2009).
approaching the extremism of Thomas: See Lee Epstein, Andrew D. Martin & Kevin Quinn, “President-Elect Trump and His Possible Justices,” Dec. 15, 2016, pdfserver.amlaw.com/nlj/PresNominees2.pdf.
“simply things you might”: The correspondent was Jan Crawford. “Trump’s Supreme Court Nomination,” Charlie Rose, Feb. 1, 2017, charlierose.com/videos/29789.
“best-organized, best-funded”: Jerry Landay, “The Federalist Society: The Conservative Cabal That’s Transforming American Law,” Washington Monthly, Mar. 2000, 19.
So he expressed: Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), cert denied, 133 S. Ct. 63 (2012).
“Who would the Donald”: Justice Don Willett, Twitter, June 16, 2015, twitter.com/justicewillett/status/610856791291916290?lang=en; and Apr. 7, 2016, twitter.com/justicewillett/status/718280241752510465?lang=en.
stockpiled: Melodi Erdogan & Jennifer Blake, “Elderly Nun Sentenced to Nearly Three Years for Tennessee Nuclear Break-in,” Reuters, Feb. 18, 2014, reuters.com/article/us-usa-security-nuclear/elderly-nun-sentenced-to-nearly-three-years-for-tennessee-nuclear-break-in-idUSBREA1H0SS20140219.
“Sherlock or Oliver Wendell”: United States v. Takhalov, 827 F.3d 1307 (11th Cir. 2016).
“how Roberts got his”: “Legacy of Henry Friendly,” C-SPAN, Mar. 10, 2017, c-span.org/video/?424016-1/justice-john-roberts-judge-merrick-garland-discuss-legacy-judge-henry-friendly.
“I wondered if”: Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (New York: Three Rivers Press, 2006), 83.
“For a variety of”: Obama to Brennan, Dec. 7, 1990, and Brennan to Obama, Dec. 13, 1990, WJB-LOC, Part II: Correspondence File, 1946–1998, Box II: 94, Folder 4 (under “ ‘O’ miscellaneous”)(access by permission).
a video of his 2013 memorial service: “Celebration of the Life of Robert H. Bork, 1927–2012,” Federalist Society, archive.fed-soc.org/aboutus/page/celebration-of-the-life-of-robert-h-bork-1927-2012.
“Seldom, if ever”: “Cardozo Is Named to Supreme Court; Nomination Hailed,” New York Times, Feb. 16, 1932, 1.
a little-known 45-year-old: Victor H. Kramer, “The Case of Justice Stevens: How to Select, Nominate and Confirm a Justice of the United States Supreme Court,” 7 Constitutional Commentary 325, 329, 331 (1990), citing memos in the Ford White House.
“vapid and hollow”: Elena Kagan, “Confirmation Messes, Old and New,” 62 University of Chicago Law Review 919 (1995).
The ruling about which nominees: Bush v. Gore, 531 U.S. 98 (2000).
the worst example: Dred Scott v. Sandford, 60 U.S. 393 (1857).
“I remember muffling”: Obama, Audacity of Hope, 82–83.
“Republicans have subscribed”: David Leonhardt, “Democrats Had a Knife, and the GOP Had a Gun,” New York Times, Dec. 20, 2016, A27. See also Carl Hulse, “New Group Hopes to Lure Democrats to Judicial Fight,” New York Times, May 4, 2018, A15.
But couldn’t Leahy have pressed: Neil Gorsuch, “Justice White and Judicial Excellence,” United Press International, May 4, 2002, upi.com/Justice-White-and-judicial-excellence/72651020510343/.
“ ‘No vehicles in the park’ ”: Federal Communications Commission v. Next-wave Personal Communications, 537 U.S. 293 (2003).
“merely more than de minimis”: Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017).
“the single most significant”: “Remarks by President Trump and Senate Majority Leader Mitch McConnell in Joint Press Conference,” White House, Oct. 16, 2017, whitehouse.gov/the-press-office/2017/10/16/remarks-president-trump-and-senate-majority-leader-mitch-mcconnell-joint.
they circulated: “But Gorsuch Meme,” me.me/i/but-gorsuch-18005076.
misrepresented Gorsuch’s words: Donald J. Trump, Twitter, Feb. 9, 2017, twitter.com/realDonaldTrump/status/829660612452036608.
“loyal”: First to report Trump’s private reaction was Ashley Parker et al., “Trump Talked About Rescinding Gorsuch’s Nomination,” Washington Post, Dec. 19, 2017, A1. In a tweet, Trump denied he reacted that way to Blumenthal’s disclosure, calling his supposed reaction “FAKE NEWS.” Donald J. Trump, Twitter, twitter.com/realDonaldTrump/status/943135588496093190.
should have nominated Rudy Giuliani: Michael Wolff, Fire and Fury: Inside the Trump White House (New York: Henry Holt, 2018), 86.
Gorsuch’s first dissent: Perry v. Merit Systems Protection Board, 137 S. Ct. 1975 (2017).
Although a handful: Trump v. International Refugee Assistance Project, 137 S. Ct. 2210 (2017) (travel ban); Peruta v. California, 137 S. Ct. 1995 (2017) (concealed guns); and Pavan v. Smith, No. 137 S. Ct. 2075 (2017)(gay rights).
“If a statute needs”: Perry v. Merit Systems Protection Board.
“general principles”: Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017).
In a highly technical case: Artis v. District of Columbia, No. 16-460, 1, 18 (2018)(dissent).
In her majority opinion: Ibid., 10, 16 n.12.
insignificant criminal case: Hicks v. United States, 137 S. Ct. 2000 (2017).
Only once before: Pacific Bell Telephone Co. v. linkLine Communications, 555 U.S. 438 (2009).
“I was frightened”: Linda Greenhouse, “Court Veteran Remembers a Scary Start,” New York Times, Feb. 16, 2006, A31.
“Dude, pick your spots!”: The professor, Daniel Epps, made the remark on his podcast First Monday, co-hosted with Ian Samuel. The quote is also recounted in Adam Liptak, “Confident and Assertive, Gorsuch Hurries to Make His Mark,” New York Times, July 4, 2017, A13.
Days after the term ended: Karen Antonacci, “Supreme Court Justice Neil Gorsuch Rides in Niwot Parade,” Denver Post, July 4, 2017, denverpost.com/2017/07/04/neil-gorsuch-july-4-homecoming-niwot-parade/.
By contrast: John P. Gregg, “Videos: Supreme Court Justice Stephen Breyer Reads Declaration in Plainfield,” Valley News [N.H.], July 5, 2017, vnews.com/Justice-Breyer-Reads-Declaration-of-Indpendence-in-N-H-Town-11111260.
“Well, Clarence”: Cushman, Courtwatchers, 95.
ambassador of the law: “Cardigan’s Commencement Address by Chief Justice John G. Roberts Jr.,” YouTube, June 6, 2017, youtube.com/watch?v=Gzu9S5FL-Ug.
“The odd historical”: Robert Barnes & Del Quentin Wilbur, “High Court Speculation: Did Roberts Switch Vote?” Washington Post, June 30, 2012, A1.
“the subtle and unfortunate”: John Paul Stevens, Five Chiefs: A Supreme Court Memoir (New York: Back Bay Books, 2012), 212–14.
When he was a child: Anne E. Kornblut, “In Re Grammar, Roberts’s Stance Is Crystal Clear,” New York Times, Aug. 29, 2005, A1.
Roberts’s artistry: See, for example, Tony Mauro, “Courtside: Katyal’s Path to Hogan Lovells,” National Law Journal Supreme Court Insider, Sept. 7, 2011.
“What’s shakin’, Chiefy baby?”: Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court (New York: Avon Books, 1979), 64.
“The conference today”: HAB-LOC, Blackmun Notes, Box 116, Feb. 15, 1980, and Mar. 28, 1980. For a sympathetic view generally of Burger’s tenure, see “Life and Legacy of Chief Justice Warren Burger” (John Sexton), C-SPAN, June 5, 2017, c-span.org/video/?429437-2/life-legacy-chief-justice-warren-burger.
It was even worse: Bernard Schwartz, Decision: How the Supreme Court Decides Cases (New York: Oxford University Press, 1996), 43.
“Bambi”: Andrew Hamm, “Ginsburg and Sotomayor Talk Food at the Court,” SCOTUSblog (June 2, 2016), scotusblog.com/2016/06/ginsburg-and-sotomayor-talk-food-at-the-court/.
“the strike zone is”: Bruce Weber, “Umpires v. Judges,” New York Times, July 11, 2009, WK1. Or as an earlier umpire, the Hall of Famer Bill Klem, said: “It ain’t nothin’ till I call it.” Fred R. Shapiro, ed., “Bill Klem Quotes,” The Yale Book of Quotations (New Haven, Conn.: Yale University Press, 2006), 433.
Balls and strikes: See Jon O. Newman, “Judging’s a Lot More Than Balls and Strikes,” Hartford Courant, Sept. 8, 2009, articles.courant.com/2009-09-08/news/newman-sotomayor-supreme_1_strike-zone-individual-judge-judge-s-role. See also Aaron Zelinsky, “The Justice as Commissioner: Benching the Judge-Umpire Analogy,” 119 Yale Law Journal Online 113 (2010).
“I just want you to know”: Jon O. Newman, Benched: Abortion, Terrorists, Drones, Crooks, the Supreme Court, Kennedy, Nixon, Demi Moore, and Other Tales from the Life of a Federal Judge (Getzville, N.Y.: William S. Hein, 2017), 1.
“the Thurgood Marshall”: Antonin Scalia, “Ruth Bader Ginsburg,” Time, Apr. 15, 2015, time.com/3823889/ruth-bader-ginsburg-2015-time-100/.
“All they wanted to do”: The secretary, Alice Stovall, is quoted in Gilbert King, Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America (New York: Harper Perennial, 2013), 5.
“No wonder that across”: Ibid.
“On and off the bench”: Dahlia Lithwick, “Justice LOLZ Grumpycat Notorious R.B.G.,” Slate, Mar. 16, 2015, slate.com/articles/double_x/doublex/2015/03/notorious_r_b_g_history_the_origins_and_meaning_of_ruth_bader_ginsburg_s.html.
even if the colorful: The video, from “everybody’s favorite guessing game”—“brought to you by Helene Curtis”—is at “Justice William O. Douglas—‘What’s My Line?’ ” YouTube, May 6, 1956, youtube.com/watch?v=0u_DgK-TIDA. Douglas failed to stump the panel.
best-selling mash-up: Irin Carmon & Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (New York: HarperCollins, 2015), 116, 100.
There’s also the recent: Tom F. O’Leary, The Ruth Bader Ginsburg Coloring Book: A Tribute to the Always Colorful and Often Inspiring Life of the Supreme Court Justice Known as RBG (Silver Spring, Md.: Gumdrop Press, 2016); Debbie Levy & Elizabeth Baddeley, I Dissent: Ruth Bader Ginsburg Makes Her Mark (New York: Simon & Schuster, 2016).
Ben & Jerry’s has been: “Create ‘Ruth Bader Ginger’ Ice Cream!” Change.org, change.org/p/please-benandjerrys-create-a-ruthbaderginger-ice-cream-flavor.
“I’m not queen”: William G. Gilroy, “A Conversation with Justice Ruth Bader Ginsburg,” Notre Dame News, Sept. 13, 2016, nd.edu/news/ruth-bader-ginsburg/.
“If you were stranded”: Ruth Bader Ginsburg, “Antonin Scalia—A Justice in Full,” National Review, Feb. 29, 2016, nationalreview.com/article/432005/antonin-scalia-justice-full.
“too far, too fast”: Ruth Bader Ginsburg, “Speaking in a Judicial Voice,” 67 New York University Law Review 1185, 1204 (1992). See also Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality,” 63 North Carolina Law Review 375 (1985). Later, after becoming a justice, she used the “too far, too fast” idea several times. See, for example, Adam Liptak, “Shadow of Roe v. Wade Looms over Ruling on Gay Marriage,” New York Times, Mar. 24, 2013, A1.
“earned acclaim”: Robert Barnes, “Ginsburg Gives No Hint of Giving Up the Bench,” Washington Post, Apr. 12, 2009, A1.
“Both are unlikely to”: Randall Kennedy, “The Case for Early Retirement,” New Republic, Apr. 28, 2011, newrepublic.com/article/87543/ginsburg-breyer-resign-supereme-court.
But in crucial cases: Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
“First Ruth, and now”: Cass Sunstein recounted the story in “In Memoriam: Justice Antonin Scalia,” 130 Harvard Law Review 1 (2016).
And finally, though: Shelby County v. Holder, 133 S. Ct. 2612 (2013).
Scalia’s originalist-textualist: Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton, N.J.: Princeton University Press, 1997).
“democratically determined”: Breyer, Active Liberty, 134. See also Stephen Breyer, Making Our Democracy Work: A Judge’s View (New York: Vintage Books, 2010).
“there’s only two people”: David Margolick, “Scholarly Consensus Builder: Stephen Gerald Breyer,” New York Times, May 14, 1994, 11.
“You know, he grows”: Gonzales v. Raich, 545 U.S. 1 (2005).
Although she let on little: Sonia Sotomayor, My Beloved World (New York: Vintage Books, 2014).
With more than 300,000: Clarence Thomas, My Grandfather’s Son: A Memoir (New York: Harper, 2007); Sandra Day O’Connor, Lazy B.: Growing Up on a Cattle Ranch in the American Southwest (New York: Random House, 2002).
credit card debt: Compare Financial Disclosure Report, “Liabilities,” CY2014, OpenSecrets.org, 4, pfds.opensecrets.org/N99999915_2014.pdf, with Financial Disclosure Report, “Liabilities,” CY2013, OpenSecrets.org, 4, pfds.opensecrets.org/N99999915_2013.pdf, and Financial Disclosure Report, “Liabilities,” CY2012, OpenSecrets.org, 4, pfds.opensecrets.org/N99999915_2012.pdf.
“not one, but two”: Sonia Sotomayor, Mi mundo adorado (New York: Vintage Spanish, 2013).
She was the only justice: Emily Smith, “The Clooneys Dine with Supreme Court Justice Sotomayor,” New York Post, Apr. 9, 2015, pagesix.com/2015/04/09/the-clooneys-dine-with-supreme-court-justice-sotomayor/.
“demographic appeal”: The letter appears, without explanation, on the website of the Ethics & Public Policy Center, which describes itself as “Washington, D.C.’s premier institute dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy.” Laurence H. Tribe to Barack Obama, Ethics & Public Policy Center, May 4, 2009. eppc.org/docLib/20101028_tribeletter.pdf.
“I have no illusions”: David Axelrod, “A Surprising Request from Justice Scalia,” CNN Online, Mar. 9, 2016, cnn.com/2016/02/14/opinions/david-axelrod-surprise-request-from-justice-scalia/.
Obama already knew: Silverman v. Major League Baseball Player Relations Committee, 880 F. Supp. 246 (S.D.N.Y. 1995).
the mutters that she wasn’t: Philip Sean Curran, “Supreme Court Justice Sonia Sotomayor Reveals She Almost Ended Her Bid for High Court,” Apr. 3, 2017, CentralJersey.com, centraljersey.com/news/supreme-court-justice-sonia-sotomayor-reveals-she-almost-ended-her/article_5d81a3a0-1877-11e7-9da8-ab30bd6867ca.html.
During the pendency: Ricci v. DeStefano, 557 U.S. 557 (2009).
“All-purpose brain”: Dana Milbank, “Wonderwonk,” New Republic, May 18, 1998, newrepublic.com/article/74863/wonderwonk.
“true reflection”: Frank Michelman to Thurgood Marshall, June 5, 1986, TM-LOC, Box 571.
“first openly gay”: Howard Kurtz, “White House Slams CBS on Blog Post About Kagan’s Sexuality,” Washington Post, Apr. 16, 2010, C1.
published a large photo: “Court Nominee Comes to the Plate,” Wall Street Journal, May 11, 2010, A1.
gall to ask: Jennifer Fermino, “Does a Picture of Elena Kagan Playing Softball Suggest She’s a Lesbian?” New York Post, May 13, 2010, nypost.com/2010/05/13/does-a-picture-of-elena-kagan-playing-softball-suggest-shes-a-lesbian/.
close enough: “Justices Share Devotion to Baseball,” New York Times, nytimes.com/slideshow/2010/05/31/us/20100601-BAR.html?_r=0, Slide 1, May 31, 2010.
extended the story further: Maureen Dowd, “Supremely Girly Girl,” New York Times, May 16, 2010, WK11.
“I’ve known her for most”: Ben Smith, “Kagan’s Friends: She’s Not Gay,” Politico, May 11, 2010, politico.com/story/2010/05/kagans-friends-shes-not-gay-037114.
“the food should be unconstitutional”: Becky Krystal, “How Federal Government Cafeterias Stack Up,” Washington Post, July 14, 2010, E2.
Replacing her: “At College Speech, Gorsuch Stresses Need for Civil Discourse,” CBS Philly, Jan. 23, 2018, philadelphia.cbslocal.com/2018/01/23/neil-gorsuch-stockton/.
“master pool shark”: Nina Totenberg, “At Harvard, Kagan Won More Fans Than Foes,” NPR, May 18, 2010, npr.org/templates/story/story.php?storyId=126826571.
“I can’t say that”: Souter to Brennan (postcard), July 12, 1994, WJB-LOC, Box II: 114; Souter to Brennan (postcard), Aug. 30, 1994, ibid.; Brennan to Souter (letter), Sept. 6, 1994, ibid.
He was with: District of Columbia v. Heller, 554 U.S. 570 (2008); Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). The first Obamacare ruling was National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). The second was King v. Burwell, 135 S. Ct. 475 (2015). Both upheld President Obama’s defining piece of legislation, the Affordable Care Act, passed by Congress in 2010.
“I am a textualist”: Nina Totenberg, “Scalia Vigorously Defends a ‘Dead’ Constitution,” NPR, Apr. 28, 2008, npr.org/templates/story/story.php?storyId=90011526.
violate the Eighth Amendment: See, for example, Antonin Scalia, “Originalism: The Lesser Evil,” 57 University of Cincinnati Law Review 849, 864 (1989).
without asking a question: Adam Liptak, “Thomas Ends 10-Year Silence on the Bench,” New York Times, Mar. 1, 2016, A1.
“prop me up on the bench”: Various versions of this story appear. I heard one version from Marshall’s son, Goody, as far back as 1987. See also, for example, David Savage, “ ‘Thurgood’ Play Captures Justice Thurgood Marshall,” Los Angeles Times, July 13, 2010, latimes.com/2010/jul/13/entertainment/la-et-thurgood-savage-20100713.
Their interview: The story was recounted by Jon Meacham, the biographer of George H.W. Bush, speaking at Vanderbilt University, May 4, 2016, vanderbilt.edu/2016/05/04/politics-front-and-center-in-fight-for-next-supreme-court-justice-panel-says/.
“chicken-shit operation”: Jon Meacham, Destiny and Power (New York: Random House, 2015), 490.
Never mind that Thomas: Jill Abramson, “Do You Believe Her Now?” New York, Feb. 5, 2018, nymag.com/daily/intelligencer/2018/02/the-case-for-impeaching-clarence-thomas.html.
“He shrugged at the news”: Roxanne Roberts, “He Said v. She Said,” Washington Post, Apr. 10, 2016, E10.
“Whoop-de-damn-do”: Robert Barnes, “At Conservatives’ Gathering, Clarence Thomas Puts Any Gloominess Aside,” Washington Post, Nov. 16, 2013, A3.
“victimization”: “Liberty University Commencement Address,” C-SPAN, May 11, 1996, c-span.org/video/?71900-1/liberty-university-commencement-address.
“the worst things”: Ruben Navarrette, “Clarence Thomas Is Right About Race,” CNN Online, Feb. 14, 2014, cnn.com/2014/02/14/opinion/navarrette-clarence-thomas-race.
“we simply annihilate”: “Justice Thomas Remarks at the Heritage Foundation,” C-SPAN, Oct. 26, 2016, c-span.org/video/?417506-1/supreme-court-justice-clarence-thomas-delivers-remarks-heritage-foundation.
“universally untrustworthy”: Diane Brady, “Online Extra: Justice Thomas Speaks,” BusinessWeek, Mar. 12, 2007, bloomberg.com/news/articles/2007-03-11/online-extra-supreme-court-justice-clarence-thomas-speaks.
“lots of eggs and butter”: Malveaux, an economist with a PhD from MIT, went on to become president of Bennett College. An audio of Thomas’s remarks can be heard at “The DisHonor Awards,” Media Research Center, Dec. 9, 1999, archive.mrc.org/notablequotables/dishonor1999/welcome.asp.
Her L.A. law firm’s: Laurie Winer, “The Avenger,” New York Times, June 20, 2010, ST1.
“to experience what Lincoln said”: “Justice Thomas Remarks at the Heritage Foundation,” C-SPAN, Oct. 26, 2016.
“the meanness you see”: “Clarence Thomas: The Justice Nobody Knows,” 60 Minutes, Sept. 27, 2007, cbsnews.com/news/clarence-thomas-the-justice-nobody-knows/.
calling the claim: Marcia Coyle, “Young Scholar, Now Lawyer, Says Clarence Thomas Groped Her in 1999,” National Law Journal, Oct. 27, 2016, law.com/nationallawjournal/almID/1202770918142/Young-Scholar-Now-Lawyer-Says-Clarence-Thomas-Groped-Her-in-1999/?et=editorial&bu=National%20Law%20Journal&cn=20161027&src=EMC-Email&pt=Daily%20Headlines.
Likewise: Abramson, “Do You Believe Her Now?” New York, Feb. 5, 2018.
“I won’t hire clerks who”: Adam Liptak, “In Clerks’ Careers, Signs of Polarization on the Supreme Court Bench,” New York Times, Sept. 6, 2010, A16.
“nine scorpions in a bottle”: The scorpions quotation is usually attributed to Oliver Wendell Holmes Jr. A recent book makes the convincing case it belongs to Alexander Bickel. See Noah Feldman, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices (New York: Twelve, 2010), 437.
“Well, he should have”: David Lat, “Justice Alito Turned Away from Sunday Brunch,” Above the Law blog, Oct. 26, 2014, abovethelaw.com/2014/10/justice-alito-turned-away-from-sunday-brunch/.
“It is not often”: The quote is from Breyer’s remarks from the bench when he announced his dissent in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).
“most consistent”: Michael Stokes Paulsen, “2014 Supreme Court Roundup,” First Things, Nov. 2014, firstthings.com/article/2014/11/2014-supreme-court-roundup. While a summer intern in the Reagan Justice Department, Paulsen played on the same softball team as Alito.
“quick smile”: George W. Bush, Decision Points (New York: Crown, 2010), 98.
“was fabulous”: Elisabeth Bumiller, “An Interview by, Not with, the President,” New York Times, July 21, 2005, A1.
“He’s good in every way”: Rich Landers, “O’Connor: Roberts ‘Good in Every Way, Except He’s Not a Woman,’ ” Spokesman-Review, July 20, 2005, spokesman.com/stories/2005/jul/20/oconnor-roberts-good-in-every-way-except-hes-not/.
“If I had it to do over”: Bush, Decision Points, 101.
“best pick on the draft”: Ibid., 102.
“Sam, you ought to thank”: Ibid.
Bickel died of cancer: Lawrence Van Gelder, “Alexander M. Bickel Dies: Constitutional Law Expert,” New York Times, Nov. 8, 1974, 42.
“the countermajoritarian difficulty”: Bickel, Least Dangerous Branch, 16.
In such mostly forgotten: Alexander M. Bickel, The Supreme Court and the Idea of Progress (New York: Harper & Row, 1970).
“Stare decisis is like wine”: David M. O’Brien, ed., Judges on Judging: Views from the Bench, 5th ed. (Washington, D.C.: CQ Press, 2016), 139, quoting Josh Blackman, “Justice Alito Reflects on His 10th Anniversary on SCOTUS,” joshblackman.com/blog/2015/09/21/justice-alito-reflects-on-his-tenth-anniversary-on-scotus/.
“The judiciary is indisputably”: “The Path to the U.S. Supreme Court,” Sept. 2, 2016, NYU Shanghai, shanghai.nyu.edu/news/path-us-supreme-court.
“Having eight”: Jess Bravin, “With Court at Full Strength, Alito Foresees Less Conservative Compromise with Liberal Bloc,” Wall Street Journal, Apr. 21, 2017, blogs.wsj.com/washwire/2017/04/21/with-court-at-full-strength-alito-foresees-more-aggressive-conservative-majority/.
a majority of one: Jeffrey Rosen, “A Majority of One,” New York Times Magazine, June 3, 2001, 32.
“Cases swing—I don’t!”: The video is embedded at “U.S. Supreme Court Associate Justice Anthony Kennedy Visits HLS,” Harvard Law Today, Oct. 23, 2015, today.law.harvard.edu/u-s-supreme-court-associate-justice-anthony-kennedy-visits-hls/.
He was thoroughly pleased: See Massimo Calabresi & David Von Drehle, “What Will Justice Kennedy Do?” Time, June 18, 2012.
Few clerks: The case was Planned Parenthood v. Casey, 505 U.S. 833 (1992), which reaffirmed that abortion was a limited constitutional right but upheld regulations that did not place an “undue burden” on the right. Nearly a quarter-century later, the Court said regulation had to confer “medical benefits sufficient to justify the burden upon access” to an abortion. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
“Sometimes you don’t”: Terry Carter, “Crossing the Rubicon,” California Lawyer, Oct. 1992, 39.
“I need to brood”: Ibid., 103.
“The spirit of liberty”: Learned Hand, “The Faith We Fight For,” New York Times Magazine, July 2, 1944, 26.
In 1996 he wrote the majority: Romer v. Evans, 517 U.S. 620 (1996).
“Monday’s decision”: Blackmun to Kennedy, May 23, 1996, HAB-LOC, Box 1405.
“No one told us”: Kennedy to Blackmun, May 28, 1996, ibid.
In opinions, in speeches: See, for example, Jeffrey Rosen, “The Agonizer,” New Yorker, Nov. 11, 1996, 82.
Hamlet of the Supreme Court: See, for example, Dahlia Lithwick, “Will He or Won’t He?” Slate, May 26, 2017, slate.com/articles/news_and_politics/jurisprudence/2017/05/how_anthony_kennedy_s_retirement_decision_became_a_battle_over_the_trump.html; and Jeffrey Rosen, “Supreme Leader: On the Arrogance of Anthony Kennedy,” New Republic, June 16, 2007, newrepublic.com/article/60925/supreme-leader-the-arrogance-anthony-kennedy.
“You know Hamlet better”: Kennedy made the remarks in an address, “The Essential Right to Human Dignity,” on June 3, 2005, to the Academy of Achievement in New York City, achievement.org/achiever/anthony-m-kennedy/#interview.
“I thought if he wrote”: Adam Liptak, “As Justices Get Back to Business, Old Pro Reveals Tricks of the Trade,” New York Times, Oct. 3, 2011, A12; see also Stevens, Five Chiefs, 237–38.
“a very exclusive organization”: Blackmun to Kennedy, Nov. 12, 1987, HAB-LOC, Box 1405.
“You now qualify for”: Ibid.
Joseph Story: Kennedy to Blackmun, Nov. 16, 1987, HAB-LOC, Box 1405.
His views on immigrants: Trump v. Hawaii, No. 17-965 (2018).
some state courts: See, for example, Saikrishna B. Prakash & John C. Yoo, “The Origins of Judicial Review,” 70 University of Chicago Law Review 887 (2003).
It is there that the rhetoric: Recent historical scholarship has found that the arguments for judicial supremacy actually emerged in the mid-1790s and were well known before Marbury. The concept was a pivotal part of the arguments around the Virginia and Kentucky Resolutions, as well as during debate over repeal of the Judiciary Act of 1801 (the so-called Midnight Judges Act). Endorsed by Federalists, judicial supremacy was strongly rejected by Republicans, who accepted the idea of judicial review but not the notion of supremacy. The dominance of Republicans when Marbury was decided led Marshall to write an opinion that carefully avoided the arguments commonly used by supporters of judicial supremacy, instead borrowing language from Jeffersonian judges that supported only the narrower case for judicial review. In context, then, Marbury was seen as a retreat from judicial supremacy, making the modern Court’s reliance on it for the principle deeply ironic. This also explains why President Jefferson never pushed back—not because Marshall had outmaneuvered him, but because Marshall had acceded to Jefferson’s own views about the role of the Court. See Larry D. Kramer, “Marbury and the Retreat from Judicial Supremacy,” 20 Constitutional Commentary 205 (2003).
In 1810: Fletcher v. Peck, 10 U.S. 87 (1810).
Six years later: Martin v. Hunter’s Lessee, 14 U.S. 304 (1816).
“Let the end be”: McCulloch v. Maryland, 17 U.S. 316 (1819).
“sort of like green pastel”: John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard University Press, 1980), 18.
“liberty of contract”: Lochner v. New York, 198 U.S. 45 (1905).
“the most influential”: Stevens, Five Chiefs, 25.
While some commentators: An example of the effort to pardon Lochner is David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (Chicago: University of Chicago Press, 2011). See also, for example, George F. Will, “Why Liberals Fear ‘Lochner,’ ” Washington Post, Sept. 8, 2011, A19.
“capitulation to big business”: See Morton J. Horowitz, “Foreword, The Constitution of Change: Legal Fundamentality Without Fundamentalism,” 107 Harvard Law Review 30, 77 (1993).
“the symbol, indeed”: Robert H. Bork, The Tempting of America (New York: Free Press, 1990), 44.
For the next three decades: The first landmark case in this era of substantive due process was really Allgeyer v. Louisiana, 165 U.S. 578 (1897), eight years before Lochner. The Court found that a constitutional right of contract—supposedly derived from Fourteenth Amendment “liberty”—meant Louisiana couldn’t forbid local entities from doing business with out-of-state marine insurance companies. But that ruling took place five years before Holmes joined the Court—and it was his commanding dissent in Lochner that gave the ruling its infamy.
The most prominent examples: Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510 (1925).
In 1935: A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
In West Coast Hotel: West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
was coincidental: Roberts himself denied it, and Frankfurter called the charge false. Felix Frankfurter, “Mr. Justice Roberts,” 104 University of Pennsylvania Law Review 311, 313 (1955). For good discussions of the episode, see Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: W.W. Norton, 2010), 412–15 and 590 n.434; and Edward L. Carter & Edward E. Adams, “Justice Owen J. Roberts on 1937,” 15 Green Bag 2d 375, 40–41 (2012).
But ultimately: Skinner v. Oklahoma, 316 U.S. 535 (1942).
“is a job for the nation’s”: Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (known as the Steel Seizure Case).
In an analogous case: United States v. Nixon, 418 U.S. 683 (1974) (known as the Nixon Tapes Case).
Two years after: Brown v. Board of Education, 347 U.S 483 (1954).
“equal but separate”: Plessy v. Ferguson, 163 U.S. 537 (1896).
“You’re whittling it”: Mark V. Tushnet, ed., Thurgood Marshall: His Speeches, Writings, Arguments, Opinions, and Reminiscences (Chicago: Lawrence Hill Books, 2001), 463.
“Why, this is a social”: The anecdote was recounted in 2003 by Abner Mikva, a law clerk for Justice Sherman Minton who was at the luncheon, to Nina Totenberg of NPR, in a series on the 50th anniversary of Brown. See Nina Totenberg, “The Supreme Court and ‘Brown v. Board of Ed.’: The Deliberations Behind the Landmark 1954 Ruling,” NPR, Dec. 8, 2003, npr.org/templates/story/story.php?storyId=1537409. Mikva later was a judge on the D.C. Circuit and White House counsel to Bill Clinton.
“Are you one of those”: John David Fassett et al., “Supreme Court Law Clerks’ Recollections of Brown v. Board of Education,” 78 St. John’s Law Review 515, 528 (2004).
“Stan, you’re all by yourself”: Richard Kluger, Simple Justice (New York: Vintage Books, 1977), 698.
empathy for a colleague: See Stephen Ellmann, “The Rule of Law and the Achievement of Unanimity in Brown,” 49 New York Law School Review 741, 763 (2004).
“was looking me right”: The Marshall quote comes from John Egerton, Speak Now Against the Day: The Generation Before the Civil Rights Movement in the South (New York: Knopf, 1994), 608.
One of Reed’s: Ibid.
“with all deliberate speed”: Brown v. Board of Education, 349 U.S. 294 (1955)(“Brown II”).
Over the decades: See the controversial Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 2d ed. (Chicago: University of Chicago Press, 2008).
The Southern backlash: See Michael J. Klarman, “How Brown Changed Race Relations: The Backlash Thesis,” 81 Journal of American History 81 (1994), and Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004).
“Like poetry”: Bickel, Least Dangerous Branch, 245.
“For African-Americans”: Adam Cohen, “The Supreme Struggle,” New York Times, Jan. 18, 2004, WK24. The lawyer was Theodore Shaw, associate director-counsel of the NAACP Legal Defense Fund.
“third legislative chamber”: Gerald Gunther, Learned Hand: The Man and the Judge (New York: Knopf, 1994), 652–57; see also 118–19.
A medley: See, for example, Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” 73 Harvard Law Review 1 (1959).
Bickel himself: See, for example, Bickel, Least Dangerous Branch, 56–63.
“on an assumption”: The quote is from a concurring opinion by Justice Thomas in Missouri v. Jenkins, 515 U.S. 70, 114 (1995).
“one person, one vote”: An observant historian noted that the language of “one person, one vote” quickly turned into “one man, one vote.” Rosenberg, Hollow Hope, 295 n.29. Rosenberg said his research revealed that only Alexander Bickel “repeatedly used the correct language.”
“political thicket”: The phrase comes from his opinion in Colegrove v. Green, 328 U.S. 549, 556 (1946).
“a massive repudiation”: Baker v. Carr, 369 U.S. 186, 267 (1962).
“The Constitution is not a panacea”: Reynolds v. Sims, 377 U.S. 533, 624 (1964).
It’s equally hard: Ely, Democracy and Distrust, 117, 120.
“clear the channels”: Ibid., 105, 183.
“when one team is gaining”: Ibid., 102–3.
In theory: Gill v. Whitford, No. 16-1161 (2018); Benisek v. Lamone, No. 17-333 (2018).
published falsehoods: New York Times v. Sullivan, 376 U.S. 254 (1964).
The same year: Miranda v. Arizona, 384 U.S. 436 (1964).
Frankfurter wrote the opinion: Poe v. Ullman, 367 U.S. 497 (1961).
In Griswold: Griswold v. Connecticut, 381 U.S. 479 (1965).
“specific guarantees”: Ibid., at 484.
“zones of privacy”: Douglas said even the Third Amendment was relevant, because it prohibits the quartering of soldiers “in any house” in times of peace without the consent of the owner.
“Don’t emanate in my penumbras!”: “John Yoo on Scalia and the Future of the Supreme Court,” FrontPage Mag, Apr. 22, 2016, frontpagemag.com/fpm/262578/john-yoo-scalia-and-future-supreme-court-frontpagemagcom.
“rational basis”: Eisenstadt v. Baird, 405 U.S. 438 (1972).
“If the right of privacy”: The italics are mine.
“case histories”: “Opinions of William J, Brennan Jr.” (usually referred to as the “Case Histories”), Oct. Term 1971, WJB-LOC, Part II, Box 6, Folder 14, XI.
Even if Brennan: One lower federal court picked up the scent early on, declaring Connecticut’s abortion statute unconstitutional months before Roe. In Abele v. Markle, 351 F. Supp. 224 (D. Conn. 1972), the court cited Eisenstadt’s discussion of an individual’s decision “whether to bear or beget a child.”
In 1938: United States v. Carolene Products Co., 304 U.S. 144 (1938).
“the Court’s first”: David A. Strauss, “Is Carolene Products Obsolete?” 2010 University of Illinois Law Review 1251, 1254 (2010).
“Carolene Products Court”: John Hart Ely, “Foreword: On Discovering Fundamental Values,” 92 Harvard Law Review 5, 5–6 (1978).
“a welfare check”: Lynch v. Household Finance, 405 U.S. 538, 552 (1972).
“Our power”: West Virginia State Board of Education v. Barnette, 319 U.S. 624, 648 (1943).
opportunistic double standard: There is much scholarship on the “double standard.” See, for example, Barry Friedman, “The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five,” 112 Yale Law Journal 153 (2002), and Gerald Gunther, Constitutional Law, 12th ed. (Westbury, N.Y.: Foundation Press, 1991), 505–6.
“That the transition”: J. Harvie Wilkinson III, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance (New York: Oxford University Press, 2012), 28.
“sacred precincts”: The words are those of Justice Douglas from Griswold, 381 U.S. at 485.
“historical traditions”: The language comes from a dissent in Planned Parenthood v. Casey, 505 U.S. at 952, which upheld a limited constitutional right to an abortion.
“freedom to do with”: The phrase is Brennan’s, used in a letter to Douglas on Dec. 30, 1971, on the pending Roe and Doe abortion cases. WJB-LOC, Part I, Box 285.
“not nothing”: John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal 920, 931 (1973).
“Dogs are not ‘persons’ ”: Ibid., 926.
“serious defect”: Doe v. Bolton, 410 U.S. 179 (1973).
But with two: For discussions of the internal debates, see Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion (Boston: Houghton Mifflin Harcourt, 2010), 370–73; and Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (New York: Times Books, 2007), 80–86.
“concerned about the impact”: “Opinions of William J. Brennan Jr.,” Oct. Term 1971, WJB-LOC, Part II, Box 6, Folder 14, LI.
In early 1971: United States v. Vuitch, 402 U.S. 62 (1971).
“Here we go”: Blackmun memo, n.d., HAB-LOC, Box 123, Folder 8.
“excoriated”: Blackmun notation, Oct. 13, 1972, HAB-LOC, Box 151, Folder 8.
His intention: Stern & Wermiel, Justice Brennan, 374–75. See also Blackmun notation, Oct. 13, 1972, HAB-LOC, Box 151, Folder 3 (Blackmun to Conference, Jan. 16, 1973; Brennan to Conference, Jan. 17, 1973); and “Opinions of William J. Brennan Jr.,” Oct. Term 1972, WJB-LOC, Part II, Box 6, Folder 14, LXVIII–IX.
“right to be let alone”: Olmstead v. United States, 277 U.S. 438 (1928), which recalled Brandeis’s article “The Right to Privacy,” 4 Harvard Law Review 193 (1890).
“odious” and “invidious”: Loving v. Virginia, 388 U.S. 1, 8, 10 (1967).
hospital administrator: See Archibald Cox, The Role of the Supreme Court in American Government (New York: Oxford University Press, 1976), 113–14.
“clearly on a collision”: O’Connor was dissenting, in Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 458 (1983), which, among other things, struck down an ordinance requiring a 24-hour waiting period and parental consent before an unmarried minor could have an abortion.
One could imagine: Some of this analysis of Roe, here and below, first appeared in an earlier book I wrote: David A. Kaplan, The Accidental President: How 413 Lawyers, 9 Supreme Court Justices, and 5,963,110 Floridians (Give or Take a Few) Landed George W. Bush in the White House (New York: William Morrow, 2001).
Why was viability: “Magic moment” has been used by many scholars, including John Hart Ely, in On Constitutional Ground (Princeton, N.J.: Princeton University Press, 1996), 284.
“The fetus then”: Roe v. Wade, 410 U.S. at 163.
“to mistake a definition”: Ely, “Wages of Crying Wolf,” 924.
“arbitrary”: Blackmun to his colleagues (memo), Nov. 21, 1972, HAB-LOC, Box 151, Folder 8.
Early in his Roe opinion: Roe v. Wade, 410 U.S. at 117.
“an improvident and”: The quote is from the dissent of White and Rehnquist, in Doe v. Bolton, 410 U.S. at 221, the companion case to Roe that involved Georgia’s more lenient abortion statute, also struck down by the Court by a 7-to-2 vote.
“so long as some care”: Ely, “Wages of Crying Wolf,” 929.
The “problem with”: Ibid., 943.
“a very bad decision”: Ibid., 947.
“Would there have been”: Ginsburg, “Speaking in a Judicial Voice,” 67 New York University Law Review at 1199. The Texas and Georgia litigations that led to Roe might have been preempted in importance by litigation in New York, but a lawsuit there ended because the state changed its law. For an alternative look at how a federal court might have ruled on abortion, see A. Raymond Randolph, “Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion,” 29 Harvard Journal of Law & Public Policy 1035 (2006). That draft, written in 1970 by the judge for whom John Roberts first clerked, found no constitutional right to abortion.
“no grand philosophy”: Ginsburg, “Speaking in a Judicial Voice,” 67 New York University Law Review at 1204, 1186.
“disadvantageous treatment”: Ibid., 1202.
A group of 11: Jack M. Balkin, ed., What Roe v. Wade Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision (New York: New York University Press, 2005); the analogous exercise played out earlier in Jack M. Balkin, ed., What Brown v. Board Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision (New York: New York University Press, 2002).
“Wandering Jew of constitutional law”: Richard A. Posner, “Legal Reasoning from the Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights,” 59 University of Chicago Law Review 433, 441–42 (1992).
“It will be an unsettled”: Blackmun, notation on outline, Oct. 13, 1972, HAB-LOC, Box 151, Folder 8.
“I am getting anniversary”: Greenhouse, Becoming Justice Blackmun, 137.
“Hogwash”: Blackmun, notation on Post-it, HAB-LOC, Box 152, Folder 2 (“Miscellany”). Some articles are marked “pro” and others “con,” though the Washingtonian piece isn’t labeled; Kim Isaac Eisler, “The Real Story Behind Roe v. Wade,” Washingtonian, Oct. 1993.
“By relying on the courts”: “The Unborn and the Born Again,” New Republic, July 2, 1977, 5.
“tragically premature”: Barbara Ehrenreich, “Mothers Unite,” New Republic, July 10, 1989, 30.
“Juricentric”: See Linda Greenhouse & Reva B. Siegel, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (New York: Kaplan Publishing, 2010), 33–34; Linda Greenhouse & Reva B. Siegel, “Before (and After) Roe v. Wade: New Questions About Backlash,” 120 Yale Law Journal 2028 (2011); and Linda Greenhouse & Reva B. Siegel, “Backlash to the Future: From Roe to Perry,” 60 UCLA Law Review 240 (2013). Greenhouse is the former longtime Supreme Court correspondent for the New York Times. (Full disclosure and small-world bit: I went to Sunday school with Reva Siegel in the 1960s.)
If nothing more: For the most part, I use pro-choice and pro-life rather than pro-abortion and anti-abortion. It’s easier, though the former phrases, too often, are as much cant as description.
Thayer’s disciples: Philip B. Kurland, Felix Frankfurter on the Supreme Court: Extrajudicial Essays on the Court and the Constitution (Cambridge, Mass.: Harvard University Press, 1970), 252.
“dwarf the political”: James Bradley Thayer, John Marshall (Boston: Houghton Mifflin, 1901), 107.
“the thunderbolt of”: Ibid., 109.
“fly paper”: See Rosenberg, Hollow Hope, 339, 341.
“Under no system”: James B. Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law,” 7 Harvard Law Review 129, 156 (1893).
As a former Brennan clerk: See Larry D. Kramer, “Judicial Supremacy and the End of Judicial Restraint,” 100 California Law Review 621, 629 (2012).
“I don’t understand”: Linda Greenhouse, “Misconceptions,” New York Times, Jan. 23, 2013, opinionator.blogs.nytimes.com/2013/01/23/misconceptions/?_r=0.
“Pro-choice people went”: Laurie Johnston, “Abortion Foes Gain Support as They Intensify Campaign,” New York Times, Oct. 23, 1977, 1.
“The political organization”: Rosenberg, Hollow Hope, 339.
“a single target”: Adam Liptak, “Court Is ‘One of Most Activist,’ Ginsburg Says, Vowing to Stay,” New York Times, Aug. 24, 2013, A1.
historical overkill: See also Randall Balmer, “The Real Origins of the Religious Right,” Politico, May 27, 2014, politico.com/magazine/story/2014/05/religious-right-real-origins-107133.
“grassroots pro-life organization”: “Statement of the Administrative Committee, National Conference of Catholic Bishops on the Anti-Abortion Amendment,” U.S. Conference of Catholic Bishops, Sept. 18, 1973, usccb.org/_cs_upload/8574_1.pdf.
various versions: David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (Berkeley: University of California Press, 1998), 618–19.
68 versions: Jeffrey Rosen, The Most Democratic Branch: How the Courts Serve America (New York: Oxford University Press, 2006), 96.
“a middle ground between”: The resolution was in June 1974. Mary Ziegler, After Roe: The History of the Abortion Debate (Cambridge, Mass.: Harvard University Press, 2015), 14.
During the 1975: Michael J. Gerhardt, “How Jimmy Carter Imperiled Roe v. Wade,” Salon, Mar. 30, 2013, salon.com/2013/03/30/how_jimmy_carter_imperiled_roe_v_wade/.
“when you have a black”: Charlie Savage, “On Nixon Tapes, Ambivalence over Abortion, Not Watergate,” New York Times, June 23, 2009, A1.
“consistently opposed”: Gerald R. Ford to Joseph L. Bernardin, Sept. 10, 1976, American Presidency Project, University of California, Santa Barbara, www.presidency.ucsb.edu/ws/print.php?pid=6320. More than two decades later, Ford identified himself as “strongly pro-choice.” Richard L. Berke, “Ford Urges GOP to Drop Abortion Issue and Shift Center,” New York Times, Jan. 20, 1998, A15.
Never mind that: Lou Cannon, “How Church and State Made Their Match,” New York Times, May 20, 2007, WK12.
Before the first: “1976’s Sleeper Issue,” Newsweek, Feb. 9, 1976, 21.
“the darling”: Laurence H. Tribe, Abortion: The Clash of Absolutes (New York: W.W. Norton, 1990), 148.
“a continuance of”: Republican Party Platform of 1976, Aug. 18, 1976, American Presidency Project, presidency.ucsb.edu/ws/index.php?pid=25843.
Pro-lifers “are a very significant force”: Martin Tolchin, “Senators Elucidate Shift on Abortions,” New York Times, July 1, 1977, A24.
“Too narrow”: Randall Balmer, Thy Kingdom Come: How the Religious Right Distorts Faith and Threatens America (New York: Basic Books, 2006), xvii.
According to Gallup: “Abortion,” 1975–present, Gallup News, news.gallup.com/poll/1576/abortion.aspx. For a nuanced view of the range of polls since Roe, see, for example, David Leonhardt, “In Public Opinion on Abortion, Few Absolutes,” New York Times, July 7, 2013, fivethirtyeight.blogs.nytimes.com/2013/07/17/in-public-opinion-on-abortion-few-absolutes/?_r=0.
Whereas in 1976: Polling about evangelicals is a bit of a mess. Balmer states the “nearly” 50 percent for 1976, but offers no corresponding figure for 1980. Randall Balmer, “Jimmy Carter’s Evangelical Downfall: Reagan, Religion and the 1980 Presidential Election,” Salon, May 25, 2014, salon.com/2014/05/25/jimmy_carters_evangelical_downfall_reagan_religion_and_the_1980_presidential_election/. Various press accounts described a significant drop-off for Carter. For example, the New York Times reported exit polls among “born-again or evangelical Christians” at 56 percent to 40 percent for Reagan over Carter. “Religion—National Exit Polls Table,” New York Times, Nov. 5, 2008, nytimes.com/elections/2008/results/president/national-exit-polls.html. The Associated Press right after Election Day in 1980 reported the split at 56–39 for Reagan, compared with 50–37 percent for Carter four years earlier.
One pollster suggested: Balmer, Thy Kingdom Come, xvii.
It also helped: “Abortion Surveillance—United States, 2005,” Centers for Disease Control and Prevention, Nov. 28, 2008, Figure 1, cdc.gov/mmwr/preview/mmwrhtml/ss5713a1.htm.
on the Sunday before: John Herbers, “Sweeping Right-to-Life Goals Set as Movement Gains New Power,” New York Times, Nov. 27, 1978, A1; Douglas E. Kneeland, “Clark Defeat in Iowa Laid to Abortion Issue,” New York Times, Nov. 13, 1978, A18.
It’s a chicken-and-egg problem: See Balmer, “Real Origins of the Religious Right,” Politico; and Randall Balmer, Redeemer: The Life of Jimmy Carter (New York: Basic Books, 2014).
“awakening” of “Religious”: Howell Raines, “Reagan Backs Evangelicals in Their Political Activities,” New York Times, Aug. 23, 1980, A8.
“I know you can’t”: “God in America: Of God and Caesar” (2010), PBS, pbs.org/godinamerica/view/.
“sins of America”: See Jerry Falwell, Listen America!: The Conservative Blueprint for America’s Moral Rebirth (New York: Bantam, 1980).
“Many of you have been”: “Remarks at a White House Briefing for Right to Life Activists,” July 30, 1987, American Presidency Project, University of California, Santa Barbara, presidency.ucsb.edu/ws/?pid=34624.
“unborn babies can feel”: Republican Platform 2016, 14, prod-cdn-static.gop.com/media/documents/DRAFT_12_FINAL[1]-ben_1468872234.pdf.
“unconstitutionally usurp”: Ibid., 10.
The party’s nominee: See, for example, Philip Bump, “Donald Trump Took Five Different Positions on Abortion in Three Days,” Washington Post, Apr. 3, 2016, washingtonpost.com/news/the-fix/wp/2016/04/03/Donald-trumps-ever-shifting-positions-on-abortion/?utm_term=.e231737a3392.
Hyde Amendment: Harris v. McRae, 448 U.S. 297 (1980).
gag rule: Rust v. Sullivan, 500 U.S. 173 (1991).
In a bitterly fragmented: Planned Parenthood v. Casey, 505 U.S. at 833.
Now, with only: The earlier cases were Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).
“the central holding of”: Planned Parenthood v. Casey, 505 U.S. at 867.
“the distance between the”: Ibid., 505 U.S. at 922–23, 943.
Back and forth: Stenberg v. Carhart, 530 U.S. 914 (2000).
seven years later: Gonzales v. Carhart, 550 U.S. 124 (2007).
In late June: Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
“the Dred Scott of our time”: This quote has been attributed to Kennedy multiple times, and never challenged. See, for example, “Anthony M. Kennedy,” Almanac of the Federal Judiciary (Austin, Tex.: Aspen Publishers, 2011), 2:17.
Judges aren’t algorithms: In the days before computers, the iconoclastic Yale law professor Fred Rodell used a different analogy, belittling those who believed the Court was like “a nine-headed calculating machine, intricately adjusted to the words of the Constitution and of lesser laws, and ready to give automatic answers to any attorneys who drop their briefs in the proper slot and push the button.” Fred Rodell, Nine Men: A Political History of the Supreme Court from 1790 to 1955 (New York: Random House, 1955), 7.
“accelerated the movement”: Posner, “Rise and Fall of Judicial Self-Restraint,” 532 n.50.
“passive virtues”: Bickel, Least Dangerous Branch, 111–98. See also Alexander M. Bickel, “The Supreme Court, 1960 Term—Foreword: The Passive Virtues,” 75 Harvard Law Review 40 (1961).
“staying its hand”: Ibid., 70–71.
He understood: Bickel’s ends-means distinction was well articulated in the context of post-9/11 national security cases in Steve Vladek, “Online Alexander Bickel Symposium: The Passive Virtues as Means, Not Ends,” SCOTUSblog, Aug. 21, 2012, scotusblog.com/2012/08/online-alexander-bickel-symposium-the-passive-virtues-as-means-not-ends/.
Sometimes the inconsistencies: Professor Gerald Gunther derided Bickel’s belief in the “passive virtues” as an argument for courts that were “100 percent principled” but only “20 percent of the time.” Gerald Gunther, “The Subtle Vices of the ‘Passive Virtues’—A Comment on Principle and Expediency in Judicial Review,” 64 Columbia Law Review 1, 3 (1964). But Gunther undervalued the Court preserving its institutional reserves, and he seemed unrealistic in believing the Court typically was able to extricate political expediency from principled adjudicating.
school violence and interstate commerce: United States v. Lopez, 514 U.S. 549 (1995).
reasonable policy makers: United States v. Morrison, 529 U.S. 598 (2000).
the Cherokee Nation: Worcester v. Georgia, 31 U.S. 515 (1832).
The question was: For a superb historical account challenging conventional wisdom that the Court’s word has always been supreme—or should be—see Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004).
In drafting: For the history, see Larry D. Kramer, “The Supreme Court, 2000 Term—Foreword: We the Court,” 115 Harvard Law Review 4, 156 n.688 (2001).
The official tally: The official margin of 537 votes was debatable. It could have been 930, as I suggested in Kaplan, Accidental President, based on what the Court ruled. The real margin, of course, is even more hotly contested, ranging from 154 to 165 to 193 to 204 in Bush’s favor, based on abbreviated recounts that were halted by the Court; to various numbers indicating a Gore victory, based on later recounts conducted by the media, as well as mathematical models by political scientists. Mercifully, I won’t here recount the respective bases for the figures.
The New York Times ran off: Much of this reporting and analysis first appeared in my earlier book, Kaplan, Accidental President.
Once lawsuits began: See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Anchor Books, 2008), 171–73.
“Federal judges”: Siegel v. LePore, 120 F. Supp. 2d 1041, 1050–52 (S.D. Fla. 2000).
To the horror of: Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000).
Pentagon Papers: New York Times v. United States, 403 U.S. 713 (1971).
Nixon Tapes: United States v. Nixon, 418 U.S. 683 (1974).
“any clearly ascertainable”: Texas Election Code, Section 127.130(d)(4) and (e).
“Judicial restraint”: Laurence H. Tribe, American Constitutional Law, 2d ed. (Mineola, N.Y.: Foundation Press, 1978), viii.
“I guess we’ll have to meet”: “Supreme Court Justice John Paul Stevens Opens Up,” 60 Minutes, Nov. 23, 2010, cbsnews.com/news/supreme-court-justice-john-paul-stevens-opens-up/.
internment of Japanese Americans: Korematsu v. United States, 323 U.S. 214 (1944). Korematsu was overruled in 2018 in Trump v. Hawaii, when the Court called it “morally repugnant,” “objectively unlawful,” “gravely wrong the day it was decided,” and “overruled in the court of history.”
“was terrible”: See, for example, Michael Isikoff, “The Truth Behind the Pillars,” Newsweek, Dec. 24, 2000, newsweek.com/truth-behind-pillars-155985.
The post-O’Connor Court: Karlan, Democracy and Disdain, 5.
“legal arguments”: Adam Liptak, “Judging a Court with Ex-Judges Only,” New York Times, Feb. 17, 2009, A14.
“one more day”: This scene was first reported in my Accidental President, 284, which was also excerpted at David A. Kaplan, “The Secret Vote That Made Bush President,” Newsweek, Sept. 17, 2001, 28. Much effort at Choate was devoted to refuting the account, including letters from participants to various publications, writing that they hadn’t heard Souter speak those words. Three years later, an article in Vanity Fair purported to disprove the account, stating it “appeared inconsistent with the facts.” David Margolick et al., “The Path to Florida,” Vanity Fair, Oct. 2004, 358. The only “fact” offered was the “belief” of clerks that “Souter had spent most of the last few crucial days in chambers brooding over the case rather than working any back channels.” The Vanity Fair article was silly. My book didn’t state Souter attempted to win Kennedy over. All it did was recount Souter’s state of mind—that if he’d had “one more day,” which he didn’t have, then perhaps Bush v. Gore would have come out differently. Never mind that if Souter had wanted to work back channels, he had a phone in chambers to call anybody while he was “brooding.” The “one more day” scene—widely cited since, without contradiction—is accurate and Souter has never denied it.
“I might have persuaded”: Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin Books, 2007), 177.
“Surely Bill Clinton would”: Stephen Gillers, “Who Says the Election Has a Dec. 12 Deadline?” New York Times, Dec. 2, 2000, A19.
By a 6-to-1 vote: Palm Beach County Canvassing Board v. Harris, 772 So.2d 1273, 1291–92 (Fla. 2000).
Thomas said: Neil A. Lewis, “Justice Thomas Speaks Out on a Timely Topic, Several of Them, in Fact,” New York Times, Dec. 14, 2000, A23.
Moreover, the Florida court: See Jacobs v. Seminole County Canvassing Board, 773 So.2d 519 (Fla. 2000); Taylor v. Martin County Canvassing Board, 773 So.2d 517 (Fla. 2000).
“this change in Florida law”: Balkin, “Bush v. Gore and the Boundary Between Law and Politics,” 110 Yale Law Journal 1407, 1435 n.90 (2001).
And indeed: Arizona v. Inter Tribal Council of Arizona, 133 S. Ct. 2247 (2013).
“the same class as”: The justice was Owen Roberts in Smith v. Allright, 321 U.S. 649, 699 (1944).
“does not sit to”: United States v. Virginia, 518 U.S. 515 (1996).
“almost a parody”: Balkin, “Bush v. Gore and the Boundary Between Law and Politics,” 1433, quoting Mark A. Graber, “The Passive-Aggressive Virtues: Cohen v. Virginia and the Problematic Establishment of Judicial Power,” 12 Constitutional Comment 67 (1995). See also “Online Alexander Bickel Symposium: The Passive Virtues as Means, Not Ends,” SCOTUSblog.
“A question which involved”: Maurice Finkelstein, “Further Notes on Judicial Self-Limitation,” 39 Harvard Law Review 221, 243 (1925), quoted in Bickel, Least Dangerous Branch, 185.
“We will have to decide”: Gill v. Whitford, No. 16-1161 (argued Oct. 3, 2017).
But if only undervotes: For those scoring at home and wanting to determine who-really-won, see a good summary of independent post hoc recounts in Wade Payson-Denney, “So Who Really Won?” CNN Online, Oct. 31, 2015, cnn.com/2015/10/31/politics/bush-gore-2000-election-results-studies/index.html. See also Ford Fessenden & John M. Broder, “Examining the Vote: The Overview,” New York Times, Nov. 12, 2001, A1. The underlying data of the most comprehensive study, by the National Opinion Research Center, is at “2000 Florida Ballots Project,” norc.org/Research/Projects/Pages/the-florida-ballots-project.aspx. Good luck sorting through the innumerable permutations.
“zero”: “Justice Thomas Speaks Out on a Timely Topic,” New York Times, A23.
“the last political act”: Linda Greenhouse, “Another Kind of Bitter Split,” New York Times, Dec. 14, 2000, A23.
“believed in Santa Claus”: Balkin, “Bush v. Gore and the Boundary Between Law and Politics,” 1407.
“a piece of shit”: David Margolick, “The Path to Florida,” Vanity Fair, Oct. 2004, 358.
“an easy case”: “Scalia on Healthcare Ruling,” YouTube, Nov. 28, 2012, youtube.com/watch?v=zAt1GcxTA8Y.
“We were the laughingstock”: “Antonin Scalia,” Charlie Rose, June 20, 2008, charlierose.com/videos/15555.
“Some court was going”: “Scalia on Healthcare Ruling,” YouTube, Nov. 28, 2012, youtube.com/watch?v=zAt1GcxTA8Y.
“Get over it!”: See, for example, “Justice Scalia on the Record,” 60 Minutes, Apr. 27, 2008, cbsnews.com/news/justice-scalia-on-the-record/; and Jim Salemi, “Supreme Court Justice Antonin Scalia Speaks at Wesleyan,” Middletown Press, Mar. 8, 2012, middletownpress.com/general-news/20120308/supreme-court-justice-antonin-scalia-speaks-at-wesleyan-with-video-2?viewmode=fullstory.
“lingering bitterness”: Joan Biskupic, “Election Decision Still Splits Court,” USA Today, Jan. 22, 2001, usatoday30.usatoday.com/news/court/2001-01-21-election.htm.
“it wasn’t the end”: “Insight and Ideas,” Aspen Ideas Festival, June 30, 2011, aspenideas.org/session/insights-and-ideas-money-politics-and-judicial-elections.
“Maybe the court”: Emily Bazelon, “Sandra Day Late,” Slate, May 1, 2013, slate.com/articles/news_and_politics/jurisprudence/2013/05/justice_sandra_day_o_connor_s_bush_v_gore_regrets_she_shouldn_t_have_retired.html.
The percentage has been: “Supreme Court,” 2000–2017, Gallup News, news.gallup.com/poll/4732/supreme-court.aspx.
“A well regulated militia”: For the sake of readability, I’ve not capitalized words such as militia and arms, even though the Constitution does.
It was this right: For a first-rate history of the Second Amendment, see Michael Waldman, The Second Amendment: A Biography (New York: Simon & Schuster, 2014).
even if the idea: See Garry Wills, “To Keep and Bear Arms,” New York Review of Books, Sept. 21, 1995, nybooks.com/articles/1995/09/21/to-keep-and-bear-arms/.
In the 1700s: Adam Winkler, Gunfight: The Battle over the Right to Bear Arms in America (New York: W.W. Norton, 2011), 13.
“the most famous machine-gun”: Ibid., 191.
There wasn’t widespread: Brian L. Frye, “The Peculiar Story of United States v. Miller,” 3 NYU Journal of Law & Liberty 48, 63 (2008). The article, cited by Scalia in his majority opinion in Heller, has more fun retelling the Miller tale than Miller probably had living it.
By the time: Ibid., 52–58.
When he found: Ibid., 82–83.
“an impenetrable mess”: United States v. Miller, 307 U.S. 174 (1939).
In keeping: Frye, “The Peculiar Story of United States v. Miller,” 68.
It wasn’t until: For the broader history, see Franklin E. Zimring, “Firearms and Federal Law: The Gun Control Act of 1968,” 4 Journal of Legal Studies 133 (1975), scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2114&context=facpubs.
“the automobile is”: Ronald Reagan, “Ronald Reagan Champions Gun Ownership,” Guns & Ammo, Sept. 1975, Patriot Post, patriotpost.us/pages/171.
“What the Subcommittee”: “The Right to Keep and Bear Arms,” Report of the Subcommittee on the Constitution of the Committee on the Judiciary (preface), Jan. 20, 1982, babel.hathitrust.org/cgi/pt?id=mdp.39015005397099;view=1up;seq=1.
“The Constitution in the Year 2000”: “The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation,” Office of Legal Policy, Department of Justice, Oct. 11, 1988, babel.hathitrust.org/cgi/pt?id=mdp.39015014943511;view=1up;seq=3.
The report didn’t say a thing: Waldman, Second Amendment, 118.
“like a rifle and powder horn”: Warren E. Burger, “The Right to Bear Arms: A Distinguished Citizen Takes a Stand,” Parade, Jan. 4, 1990, 4.
“If the militia”: “PBS NewsHour,” YouTube, Dec. 16, 1991, youtube.com/watch?v=Eya_k4P-iEo.
“If liberals interpreted”: Michael Kinsley, “Slicing Up the Second Amendment,” Washington Post, Feb. 8, 1990, A25.
After Scalia’s death: “$1 Million Endows Professorship at George Mason University,” George Mason University Media and Public Relations, Jan. 28, 2003, eagle.gmu.edu/newsroom/399/; Nicholas Fandos, “Law School Renamed for Antonin Scalia, Again. Blame Acronym,” New York Times, Apr. 5, 2016, nytimes.com/2016/04/06/us/politics/antonin-scalia-george-mason-law-school-acronym.html?_r=0.
the NRA bankrolled: Waldman, Second Amendment, 98.
“For too long”: Sanford Levinson, “The Embarrassing Second Amendment,” 99 Yale Law Journal, 637, 658 (1989).
“the perhaps subconscious fear”: Ibid., 642.
It was not until 1977: Waldman, Second Amendment, 88–91.
The group’s radicalization: David Frum, How We Got Here: The 70s, the Decade That Brought You Modern Life—for Better or Worse (New York: Basic Books, 2000), 19.
At NRA headquarters: Waldman, Second Amendment, 88, 96.
energetically opposed the Democrat: The NRA didn’t endorse George H.W. Bush in 1992 or Bob Dole in 1996.
“The text and the original intent”: The full letter can be read on the website of the NRA’s lobbying arm, the NRA-ILA Institute for Legislative Action, nraila.org/media/2421928/Ashcroft.pdf (May 17, 2001).
“whole areas”: Printz v. United States, 521 U.S. 898, 938–39 (1997).
Thomas had shown: See generally Kramer, People Themselves.
Public opinion, too: “Guns,” Gallup News, Feb. 8–10, 2008, news.gallup.com/poll/105721/public-believes-americans-right-own-guns.aspx.
a new constitutional right: United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert denied, 536 U.S. 907 (2002).
he became an author: For a detailed account of the Levy-Neily-Simpson backstory, see Marcia Coyle, The Roberts Court: The Struggle for the Constitution (New York: Simon & Schuster, 2014), 124–35.
Because Heller: Sam Skolnik, “Heller Attorneys Awarded $1.1M in Fees, One-Third of Their Request,” Legal Times, Dec. 29, 2011, legaltimes.typepad.com/blt/2011/12/heller-attorneys-awarded-11m-in-fees-one-third-of-their-request.html.
they would be far from: Adam Liptak, “Carefully Plotted Course Propels Gun Case to Top,” New York Times, Dec. 3, 2007, A16.
“years of unchanged”: Parker v. District of Columbia, 311 F. Supp. 2d 101, 109–10 (D.D.C. 2004). Parker was the name of an initial plaintiff who was dismissed from the case.
“dead letter”: Parker v. District of Columbia, 478 F.3d 370, 378 (D.C. Cir. 2007).
Scottish highlanders: See Reva B. Siegel, “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” 122 Harvard Law Review 191, 192 (2008), for a fine discussion of this and other “temporal oddities” of the majority’s analysis of “original meaning.” See also Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution (New York: Henry Holt, 2014), 172.
The court was flooded: The 19 friend-of-the-court briefs for D.C. can be read at scotusblog.com/2008/01/amicus-briefs-for-dc-available-in-guns-case/. The 47 briefs on Heller’s behalf can be read at scotusblog.com/2008/02/amicus-briefs-for-heller-available-in-guns-case/.
“were just as ‘causey’ ”: Coyle, Roberts Court, 181.
“aware of the problem”: District of Columbia v. Heller, 554 U.S. at 636.
“The range”: Richard A. Posner, “In Defense of Looseness,” New Republic, Aug. 27, 2008, newrepublic.com/article/62124/defense-looseness.
In the spring of 2018: John Paul Stevens: “Repeal the Second Amendment,” New York Times, Mar. 28, 2018, A23.
“As time passes”: Bickel, Least Dangerous Branch, 39.
“vindication of originalism”: Coyle, Roberts Court, 163.
“has taken sides”: Lawrence v. Texas, 539 U.S. 558 (2003).
“fidelity to law”: Siegel, “Dead or Alive,” 237–38.
“If the policy of the”: Planned Parenthood v. Casey, 505 U.S. at 996, 997.
“arrogance cloaked as humility”: William J. Brennan Jr., “The Constitution of the United States: Contemporary Ratification,” 27 South Texas Law Review 433, 435 (1986).
“The Roe and Heller Courts”: J. Harvie Wilkinson III, “Of Guns, Abortions, and the Unraveling Rule of Law,” 95 Virginia Law Review 253, 254 (2009). See also Wilkinson, Cosmic Constitutional Theory, 57–58.
“just as easily be seen”: Wilkinson, “Of Guns, Abortions,” 256, 265.
“the Constitution’s text”: Ibid., 273.
“obviously”: “Gun Control—Supreme Court Justice Scalia,” Fox News Sunday, July 29, 2012, video.foxnews.com/v/1760716797001.
“nationalizing”: Posner, “In Defense of Looseness.”
The title: Richard A. Posner, “The Incoherence of Antonin Scalia,” New Republic, Aug. 24, 2012, newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism.
“I did not”: Terry Baynes, “Fanning Furor, Justice Scalia Says Appeals Court Judge Lied,” Reuters, Sept. 17, 2012, reuters.com/article/us-usa-court-scalia-idUSBRE88H06X20120918; “The Benchslap Dispatches: Justice Scalia on Judge Posner’s ‘Hatchet Job,’ ” Sept. 10, 2012, Above the Law blog, abovethelaw.com/2012/09/the-benchslap-dispatches-justice-scalia-on-judge-posners-hatchet-job/#more-190407; Richard A. Posner, “Richard Posner Responds to Antonin Scalia’s Accusation of Lying,” New Republic, Sept. 20, 2012, newrepublic.com/article/107549/richard-posner-responds-antonin-scalias-accusation-lying.
“dangerous and unusual”: McDonald v. Chicago, 561 U.S. 742 (2010). The ruling involved Chicago’s handgun ban that was similar to Washington’s.
“a disfavored right”: Peruta v. California, 137 S. Ct. 1995 (2017).
Despite the Thomas-Gorsuch cry: Silvester v. Becerra, No. 17-342 (2018) (dissenting from the denial of cert).
five years after Heller: The 2013 case involved the Defense of Marriage Act (DOMA).
“criminalizing a movie”: Adam Liptak, “Supreme Court to Revisit ‘Hillary’ Documentary,” New York Times, Aug. 29, 2009, A1.
“a hogshead and a barrel”: See references at “Beer,” George Washington’s Mount Vernon, mountvernon.org/digital-encyclopedia/article/beer/.
“Virtually every means”: Buckley v. Valeo, 424 U.S. 1 (1976).
“reams of disquieting”: McConnell v. Federal Election Commission, 540 U.S. 93 (2003).
“Where the First”: Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007).
“Gosh”: “Justice Sandra Day O’Connor Remarks on Choosing Judges” (Georgetown University), C-SPAN, Jan. 26, 2010, c-span.org/video/?291663-3/justice-sandra-day-oconnor-remarks-choosing-judges; Jeffrey Rosen, “Why I Miss Sandra Day O’Connor,” New Republic, July 1, 2011, newrepublic.com/article/91146/sandra-day-o-connor-supreme-court-alito.
“the founding fathers’ vision”: “Who We Are,” Citizens United, citizensunited.org/who-we-are.aspx.
All they had to do: Stephanie Mencimer, “Hillary’s Hero: Judge Royce Lamberth,” Mother Jones, Jan. 2008, motherjones.com/politics/2008/01/hillarys-hero-judge-royce-lamberth/.
According to multiple: See Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court (New York: Doubleday, 2012), 167–69, and Coyle, Roberts Court, 249–52. Stevens confirms some of these accounts in Adam Liptak, “Justice Stevens Suggests Solution for ‘Giant Step in the Wrong Direction,’ ” New York Times, Apr. 22, 2014, A14.
He was ready: The earlier case was Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which upheld a ban on corporations making expenditures to support or oppose candidates, even if the expenditures were independent of a campaign.
and a related lower-court ruling: The case was SpeechNow.org v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010).
In that year, 83 Super PACs: The numbers come from customizable graphs and tables put together by the Center for Responsive Politics. See “Financial Activity by Super PACs,” OpenSecrets.org, opensecrets.org/outsidespending/summ.php?chrt=V&type=S.
But politicians and pundits: For a good early analysis, only days after the ruling, see Nathaniel Persily, “The Floodgates Were Already Open,” Slate, Jan. 25, 2010, slate.com/articles/news_and_politics/jurisprudence/2010/01/the_floodgates_were_already_open.html.
“Not true”: “Alito Mouths ‘Not True,’ ” YouTube, Jan. 27, 2010, youtube.com/watch?v=4pB5uR3zgsA.
“the image”: “Chief Justice John Roberts Remarks,” C-SPAN, Mar. 9, 2010, c-span.org/video/?292439-1/chief-justice-john-roberts-remarks.
“rude”: Robert Barnes, “In the Court of Public Opinion, No Clear Ruling,” Washington Post, Jan. 29, 2010, A1.
“Why is it easier”: “ ‘Hillary: The Movie’ Gets New Airing at High Court,” CNBC, Aug. 2, 2010, cnbc.com/id/32754702.
Having a First Amendment: The idea that the First Amendment was being dangerously “weaponized” was nicely expressed by Elena Kagan in another context in 2018. See Janus v. AFSCME, No. 16-1466 (2018). The conservative justices, she wrote in dissent, were “weaponizing” the First Amendment “in a way that unleashes judges…to intervene in economic and regulatory policy.”
“The losers in Heller”: Wilkinson, “Of Guns, Abortions,” 323.
A Disdain for Democracy: Apologies on the title to Professor Pam Karlan of Stanford. See Karlan, “Democracy and Disdain,” which itself was a play on Professor John Hart Ely’s Democracy and Distrust.
In particular, rulings: See, for example, Hamdi v. Rumsfeld, 542 U.S. 507 (2004), along with two other cases, upholding the right of enemy combatants, even foreigners, to challenge their detentions in federal courts: Hamdan v. Rumsfeld, 548 U.S. 557 (2006), invalidating military commissions established by the Bush administration to try detainees at Guantanamo Bay; and Boumediene v. Bush, 553 U.S. 723 (2008), declaring Congress lacked the power to strip federal courts of jurisdiction to hear challenges by foreigners detained at Guantanamo.
Its singular moment: Robert A. Caro, “When LBJ Said, ‘We Shall Overcome,’ ” International Herald Tribune, Aug. 29, 2008, 8.
The case was called: Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).
the school districts cited: See Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003).
The Court was confirming: Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
Never mind that he lifted: See Parents Involved in Community Schools v. Seattle School District No. 1, 426 F.3d 1162, 1222 (9th Cir. 2005) (Judge Carlos Bea dissenting). Breyer’s dissent, in criticizing Roberts’s “slogan,” quoted Bea’s line—“the way to end racial discrimination is to stop discriminating by race”—and cited it as the origin for the slogan. Linda Greenhouse also discussed the “benign plagiarism” in “A Tale of Two Justices,” 11 Green Bag 2d 37, 40–41 (2008).
Oral dissents: See, for example, Christopher W. Schmidt & Carolyn Shapiro, “Oral Dissenting on the Supreme Court,” 19 William & Mary Bill of Rights Journal 75 (2010).
Six years later: Fisher v. University of Texas, 133 S. Ct. 2411 (2013).
But when she: Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014).
“To doubt”: Sotomayor, My Beloved World, 245.
“proves our unbending”: Ronald Reagan, “Remarks on Signing the Voting Rights Act Amendments of 1982,” Reagan Library Archives, June 29, 1982, reaganlibrary.archives.gov/archives/speeches/1982/62982b.htm.
Congress heard: See Shelby County v. Holder, 679 F.3d 848, 865 (D.C. Cir. 2012).
Between 1965: “Total Section 5 Changes Received by the Attorney General, 1965 Through 2013,” U.S. Department of Justice (2013), justice.gov/crt/section-5-changes-type-and-year-2.
For example: “New Voting Restrictions in America,” Brennan Center for Justice (2017), brennancenter.org/new-voting-restrictions-america.
“Congress is declaring”: Remarks of Lynn Westmoreland, Congressional Record—House, vol. 152, pt. 11, July 13, 2006, 14327.
“unremitting and ingenious”: South Carolina v. Katzenbach, 303 U.S. 301 (1966).
in 2009 the Roberts Court: Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193 (2009).
“racial and ethnic”: “About Us,” Project on Fair Representation, projectonfairrepresentation.org/about/.
“I find the plaintiff”: Morgan Smith, “One Man Standing Against Race-Based Laws,” New York Times, Feb. 24, 2012, A21.
Was this the same justice: United States v. Windsor, 133 S. Ct. 2675 (2013).
“on the narrowest possible”: “Georgetown University Law Center Commencement Address,” C-SPAN, May 21, 2006, c-span.org/video/?192685-1/georgetown-university-law-center-commencement-address.
“Roberts blinked”: Richard L. Hasen, “Initial Thoughts on NAMUDNO: Chief Justice Roberts Blinked,” Election Law Blog, June 22, 2009, electionlawblog.org/archives/cat_vra_renewal_guest_blogging.html.
“It is a sordid business”: League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006).
“we were burned”: Richard L. Hasen, “Roberts’ Iffy Support for Voting Rights,” Los Angeles Times, Aug. 3, 2005, citing administration documents released by the National Archives, articles.latimes.com/2005/aug/03/opinion/oe-hasen3.
Roberts was suggesting: See Reva B. Siegel, “The Supreme Court, 2012 Term—Foreword: Equality Divided,” 127 Harvard Law Review 1, 72–73 (2013).
As various commentators: Ibid., 52 n.254 and 75 n.382.
“doctrine of one last”: Richard M. Re, “The Doctrine of One Last Chance,” 17 Green Bag 2d 173 (2014).
“moonshining-est”: Robert H. Brown, “One of Biggest Moonshining Districts in the Nation,” Herald-Journal (Spartanburg, S.C.), Apr. 9, 1935, reprinted in Donna R. Causey, Alabama Pioneers, vol. 1 (2011), alabamapioneers.com/shelby-county-once-had-the-reputation-as-being-the-moonshingest-county-in-the-state-of-alabama/.
As it turned out: The $250,000 was an interesting figure. It represented what Blum’s organization said it paid the lawyers. But the lawyers later asked for $2 million in reimbursement from the federal government. A court denied any reimbursement. See Shelby County v. Lynch, No. 14-5138 (D.C. Cir. 2015). The two figures represented the difference between how lawyers valued their time and what they were actually paid.
“using phony statistics”: Akilah Johnson, “Massachusetts Official Challenges Chief Justice Roberts’ Claim About Voting,” Boston Globe, Feb. 28, 2013, boston.com/news/local-news/2013/02/28/massachusetts-official-challenges-chief-justice-roberts-claim-about-voting. For examples of how the Court sometimes gets its facts wrong, see also Ryan Gabrielson, “It’s a Fact: Supreme Court Errors Aren’t Hard to Find,” ProPublica, Oct. 17, 2017, propublica.org/article/supreme-court-errors-are-not-hard-to-find.
“equality of states”: South Carolina v. Katzenbach, 383 U.S. 301, 328–29 (1966). The assertion of equal terms for admission wasn’t quite so. Utah was granted statehood in 1896 only on the condition that a ban on polygamy be put in the state constitution. See Article III of the Utah State Constitution and Justice Scalia’s dissent in Romer v. Evans, 517 U.S. at 648, for a discussion of the conditions for Utah statehood.
“of which I had never”: Richard A. Posner, “Supreme Court 2013: The Year in Review,” Slate, June 26, 2013, slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/the_supreme_court_and_the_voting_rights_act_striking_down_the_law_is_all.html.
If Alabama still: See Eric Posner, “Supreme Court 2013: The Year in Review,” Slate, June 26, 2013, slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_on_the_voting_rights_act_chief_justice_john_roberts_struck.html. Eric Posner is the son of Richard Posner.
“like throwing away your”: See Ellen D. Katz, “Justice Ginsburg’s Umbrella,” in Samuel R. Bagenstos, ed., A Nation of Widening Opportunities: The Civil Rights Act at 50 (Ann Arbor: Michigan Publishing, 2015).
“target African Americans”: North Carolina State Conference of the NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016).
“It’s a serious problem”: “Justice Anthony Kennedy Notes Power Shift,” Associated Press, Mar. 7, 2013, sfgate.com/politics/article/Justice-Anthony-Kennedy-notes-power-shift-4337821.php.
“This is Anthony Kennedy’s country”: Richard H. Fallon Jr., The Dynamic Constitution: An Introduction to American Constitutional Law and Practice, 2d ed. (New York: Cambridge University Press, 2013), xxv. See also, for example, Michael Brendan Dougherty, “Anthony Kennedy Can’t Be Allowed to Die,” National Review, Jan. 23, 2018, nationalreview.com/article/455683/anthony-kennedy-swing-vote-supreme-court-we-need-him-alive?utm_source=newsletter&utm_medium=email&utm_campaign=politics-daily-newsletter&utm_content=20180123&silverid=MzEwMTkwMTU5MTQxS0.
“Well, Harry, I didn’t learn”: Woodward & Armstrong, The Brethren, 235.
“You don’t say”: Fred Barbash, “Blackmun’s Papers Shine Light into Court,” Washington Post, Mar. 5, 2005, A1.
When the Warren Court: Poe v. Ullman, 367 U.S. 497 (1961).
Ten years later: Doe v. Commonwealth’s Attorney of Richmond, 425 U.S. 901 (1976).
Another decade passed: Bowers v. Hardwick, 478 U.S. 186 (1986).
Bowers involved: Joyce Murdoch & Deb Price, Courting Justice: Gay Men and Lesbians v. the Supreme Court (New York: Basic Books, 2002), 284; Stern & Wermiel, Justice Brennan, 497–98.
“Sexual activity”: John C. Jeffries Jr., Lewis F. Powell Jr.: A Biography (New York: Fordham University Press, 2001), 521.
“Yes”: Ibid.
“I don’t believe”: Ibid.
Powell had as clerks 18: Murdoch & Price, Courting Justice, 23.
“4½ to 4½”: Jeffries, Lewis Powell Jr., 524, quoting Powell’s notes in the margin of a memo Stevens had sent him.
So it: Many scholars observed it was White’s opinion that was facetious. Among other things, they said, he got even the basic history of sodomy wrong by suggesting that homosexuality had long been associated with it. See, for example, Richard A. Posner, Sex and Reason (Cambridge, Mass.: Harvard University Press, 1992), 343.
“dispatched the issue”: Jeffries, Lewis Powell Jr., 525.
He slyly took that quote: The case was Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).
Gay rights groups: For a list of some, see Earl M. Matz, “The Prospects for a Revival of Conservative Activism in Constitutional Jurisprudence,” 24 Georgia Law Review 629, 645 (1990).
“preposterous and contradictory”: “The Right to Be Left Alone” (editorial), Boston Globe, July 1, 1986, 18.
“stunningly harsh and dismissive”: Garrow, Liberty and Sexuality, 666.
As time went by: See William N. Eskridge Jr., Dishonorable Passions: Sodomy Laws in America, 1861–2003 (New York: Penguin, 2008), 263.
“I think I probably”: Anand Agneshwar, “Ex-Justice Says He May Have Been Wrong,” National Law Journal, Nov. 5, 1990, 3.
That set the stage: On the bench, Kennedy’s views were hardly enlightened. Eight months after becoming a lower-court judge, Kennedy participated in a little-noticed gay rights case, involving a federal employee in Seattle who claimed he was fired because he was gay. Though Kennedy didn’t write the opinion, he did sign on to it. In dismissing the employee’s claim, the opinion discussed the employee’s “immoral and notoriously disgraceful conduct,” and that he “openly and publicly flaunted his homosexual way of life.” Kennedy and the other judges said they were following precedent. Singer v. U.S. Civil Service Commission, 530 F.2d 247 (9th Cir. 1976).
Popular culture: Opinion polls showed widespread disapproval of laws that criminalized homosexual sodomy. Eskridge, Dishonorable Passions, 268–69.
“Ellen effect”: The phrase was coined by Kris Franklin in “The Rhetorics of Legal Authority: Constructing Authoritativeness, the ‘Ellen Effect,’ and the Example of Sodomy Law,” 33 Rutgers Law Journal 49 (2001).
“fundamental right to participate”: Evans v. Romer, 854 P.2d 1270, 1282 (Colo. 1993).
“one-way ratchet”: See, for example, Akhil Reed Amar, “Attainder and Amendment 2: Romer’s Rightness,” 95 Michigan Law Review 203, 206 (1996).
“everyone else”: Akhil Reed Amar, The Law of the Land: A Grand Tour of Our Constitutional Republic (New York: Basic Books, 2015), 93.
Both details: Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas (New York: W.W. Norton, 2012), 63, 114.
“pharmacological impairment”: See Brian Rogers & Peggy O’Hare, “Rosenthal Cites Prescription Drugs in Resignation as DA,” Houston Chronicle, Feb. 15, 2008, chron.com/news/houston-texas/article/Rosenthal-cites-prescription-drugs-in-resignation-1600712.php, and Monica Rhor, “Ex–Houston Prosecutor Avoids Charges over Emails,” Associated Press, Dec. 2, 2008, sandiegouniontribune.com/sdut-texas-prosecutors-downfall-120208-2008dec02-story,amp.html.
The visitors’ pews: Eskridge, Dishonorable Passions, 323.
The lawyer for the two men: Carpenter, Flagrant Conduct, 212.
“straight answer”: Eskridge, Dishonorable Passions, 324.
“counter-clerk”: Gil Seinfeld, “The Good, the Bad, and the Ugly: Reflections of a Counter-Clerk,” 114 Michigan Law Review First Impressions 111 (2016).
“What would have happened”: Ian Samuel, “The Counter-Clerks of Justice Scalia,” 10 New York University Journal of Law & Liberty 1 (2016).
In 1971: Baker v. Nelson, 291 Minn. 310 (1971).
Phyllis Schlafly: “ERA and Homosexual ‘Marriages,’ ” Phyllis Schlafly Report, Sept. 1974, eagleforum.org/publications/psr/sept1974.html#.WbiVI6Pamng.mailto.
“Legalizing gay”: Andrew Sullivan, “Here Comes the Groom: A (Conservative) Case for Gay Marriage,” New Republic, Aug. 28, 1989, newrepublic.com/article/79054/here-comes-the-groom.
“compelling state interest”: Baehr v. Lewin, 74 Haw. 645 (1993). See also Garrow, Liberty and Sexuality, 725–26.
39 states: See, for example, Jill Pellettieri, “Explainer: FAQ: Gay Marriage,” Slate, Feb. 27, 2004, slate.com/articles/news_and_politics/explainer/2004/02/faq_gay_marriage.html.
“Whether and whom to marry”: Goodridge v. Department of Public Health, 440 Mass. 309 (2003).
Massachusetts thus became: The other jurisdictions were British Columbia and Ontario in Canada, as well as Belgium and the Netherlands. See Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (New York: Oxford University Press, 2013), 90.
The ruling was a watershed: Ibid., 91.
Public opinion yo-yoed: Tribe & Matz, Uncertain Justice, 46.
Windsor sued: See Ariel Levy, “The Perfect Wife: How Edith Windsor Fell in Love, Got Married, and Won a Landmark Case for Gay Marriage,” New Yorker, Sept. 30, 2013, 54; Robert D. McFadden, “Edith Windsor, 88, Marriage Equality Plaintiff, Dies,” New York Times, Sept. 13, 2017, A1; Jo Becker, Forcing the Spring: Inside the Fight for Marriage Equality (New York: Penguin Press, 2014), 253–55; and “Brief on the Merits for Respondent Edith Schlain Windsor,” Supreme Court of the United States, Feb. 26, 2013, americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-307_resp_merits.authcheckdam.pdf.
They said their lawsuit: Jesse McKinley, “Bush v. Gore Foes Join to Fight California Gay Marriage Ban,” New York Times, May 27, 2009, A1.
The U.S. Supreme Court: Hollingsworth v. Perry, 133 S. Ct. 2652 (2013).
Windsor’s verdict: Some scholars think otherwise. See, for example, Heather K. Gerken, “Windsor’s Mad Genius: The Interlocking Gears of Rights and Structure,” Yale Faculty Scholarship Series, Paper 4892 (2015), digitalcommons.law.yale.edu/fss_papers/4892.
“It takes inexplicable”: Conde-Vidal v. Garcia-Padilla, 54 F. Supp. 3d 157, 166 (2014). The judge in the case upheld Puerto Rico’s ban on same-sex marriage. Later, after Obergefell, he refused to reverse himself, leading a federal appeals court to remove him from the case. But his insubordination didn’t render his initial observation invalid.
right after Lawrence: “Marriage,” 1996–present, Gallup News, news.gallup.com/poll/117328/marriage.aspx.
“When the courts do not”: DeBoer v. Snyder, 772 F.3d 388, 421 (2014).
They started camping out: Dahlia Lithwick & Mark Joseph Stern, “Not All Must Rise,” Slate, Apr. 27, 2015, slate.com/articles/news_and_politics/jurisprudence/2015/04/standing_in_line_for_supreme_court_gay_marriage_arguments_draw_crowd_days.html.
the audience included: Mark A. Walsh, “A View from the Courtroom: Same-Sex Marriage Edition,” SCOTUSblog, Apr. 28, 2015, scotusblog.com/2015/04/a-view-from-the-courtroom-same-sex-marriage-edition/.
But the justices could have: Naim v. Naim, 197 Va. 734, appeal dismissed, 350 U.S. 985 (1956).
“one bombshell”: Rosenberg, Hollow Hope, 81. Other sources attribute the quote to Justice Tom C. Clark. See also Klarman, From Jim Crow to Civil Rights, 321–23.
Judges should be: See, for example, “Principles of Judicial Engagement,” Institute for Justice, ij.org/center-for-judicial-engagement/programs/principles-of-judicial-engagement/.
“However heartened”: Roberts’s legal position seemed unrelated to his personal views. In 1996, he donated his time to assist lawyers for gay activists preparing to argue Romer v. Evans. In a moot court session, he played the part of Justice Scalia. Roberts’s name doesn’t appear on any of the legal papers. His work came to light in a newspaper article when he was nominated to the Court. Such pro bono work is voluntary. Richard A. Serrano, “Roberts Donated Help to Gay Rights Case,” Los Angeles Times, Aug. 4, 2005, A1.
“biting off more than”: Ginsburg made the “more than it could chew” comment in 2009 at Princeton. Adam Liptak, “In Battle over Marriage, the Timing May Be Key,” New York Times, Oct. 27, 2009, A14.
“the marvelous mystery”: Bickel, Least Dangerous Branch, 26.
“Justice is not”: She was quoting Justice Benjamin Cardozo, who made the remark in 1923, when he was serving on New York’s highest court.
“If people don’t care”: Ginsburg was at the University of Chicago. “Justice Ruth Bader Ginsburg and Geoffrey Stone: Roe at 40,” YouTube, May 11, 2013, youtube.com/watch?v=xw3CMRyvkq4.
“the best decision”: Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, Mass.: Harvard University Press, 1999), 263.
In the four: For a state-by-state map of pre-Obergefell law, see “The Changing Landscape of Same-Sex Marriage,” Washington Post, June 26, 2015, washingtonpost.com/wp-srv/special/politics/same-sex-marriage/.
Sometimes a split: See, for example, Diane P. Wood, “Is It Time to Abolish the Federal Circuit’s Exclusive Jurisdiction in Patent Cases?” 13 Chicago-Kent Journal of Intellectual Property 1, 5–6 (2013).
“Wise adjudication”: Maryland v. Baltimore Radio Show, 338 U.S. 912, 918 (1950).
As the decisive vote: National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).
“Everybody has to buy”: For enriching histories of the broccoli analogy, see Mark D. Rosen & Christopher W. Schmidt, “Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case,” 61 UCLA Law Review 66, 100–10 (2013), and James B. Stewart, “How Broccoli Landed on Supreme Court Menu,” New York Times, June 14, 2012, A1.
The custom: Del Dickson, ed., The Supreme Court in Conference (1940–1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (New York: Oxford University Press, 2001), 5.
One scholar: The scholar was Akhil Reed Amar, quoted in Ezra Klein, “The Political Genius of John Roberts,” Washington Post, June 28, 2012, washingtonpost.com/news/wonk/wp/2012/06/28/the-political-genius-of-john-roberts/. See also Karlan, Democracy and Disdain, 50.
“Context matters”: Stephen Jay Gould, “The Strike That Was Low and Outside,” New York Times, Nov. 10, 1984, 23.
These resentments: Roberts’s switch was first reported by CBS News days after the ruling. Jan Crawford, “Roberts Switched Views to Uphold Health Care Law,” CBS News, July 2, 2012, cbsnews.com/news/roberts-switched-views-to-uphold-health-care-law/. See also Paul Campos, “Roberts Wrote Both Obamacare Opinions,” Salon, July 3, 2012, salon.com/2012/07/03/roberts_wrote_both_obamacare_opinions/.
“Malta, as you know”: Adam Liptak, “After Ruling, Roberts Makes a Getaway from the Scorn,” New York Times, July 2, 2012, A10.
Such finger-pointing: George F. Will, “A Liberal Squeeze Play,” Washington Post, May 27, 2012, A27. See also, for example, Orin Kerr, “More on the Supreme Court Leak,” Volokh Conspiracy, July 3, 2012, volokh.com/2012/07/03/more-on-the-supreme-court-leak/, and the remarks quoted there from Ramesh Ponnuru, which are available in full in a podcast at Princeton Alumni Weekly, June 2, 2012, princeton.edu/paw/ROXEN/av_files/pawlitics_podcast.mp3. For a discussion of Court leaks generally and the guessing game associated with the putative leaks on the Obamacare ruling, see Sam Baker, “Supreme Court Healthcare Ruling Leaks Have D.C. Buzzing: Who Is the Culprit?” The Hill, July 4, 2012, thehill.com/policy/healthcare/236197-supreme-court-talk-has-dc-buzzing-who-is-the-leaker.
working the ref: Kathleen Parker, “Democrats Put John Roberts on Trial,” Washington Post, May 23, 2012, A21. See also Mark Tushnet, “Reasons for Thinking That Law Mattered,” Balkinization, July 3, 2012, balkin.blogspot.com/2012/07/reasons-for-thinking-that-law-mattered.html.
“broccoli horrible”: One New York writer spoke up in broccoli’s defense: Adam Gopnik, “ ‘The Broccoli Horrible’: A Culinary-Legal Dissent,” New Yorker, June 28, 2012, newyorker.com/news/news-desk/the-broccoli-horrible-a-culinary-legal-dissent.
“If it’s not necessary”: “Georgetown University Law Center Commence1ment Address,” C-SPAN, May 21, 2006.
“in the delightful position”: Robert G. McCloskey, The American Supreme Court (Chicago: University of Chicago Press, 1960), 42.
“a masterwork of misdirection”: Ibid., 40. See also, for example, Daniel Epps, “In Health Care Ruling, Roberts Steals a Move from John Marshall’s Playbook,” Atlantic, June 28, 2012, theatlantic.com/national/archive/2012/06/in-health-care-ruling-roberts-steals-a-move-from-john-marshalls-playbook/259121/.
Roberts declined: In King v. Burwell, 135 S. Ct. 475 (2015), the Court upheld Obamacare on statutory rather than constitutional grounds. The issue involved sloppy wording in the ACA that opponents claimed had to be interpreted literally, even if the result was ridiculous. Roberts, for a 6-to-3 majority, found that the statute’s overall “context and structure” took precedence. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he wrote.
“The rightful liberties”: Randy Barnett, “ ‘Judicial Engagement’ Is Not the Same as ‘Judicial Activism,’ ” Washington Post, Jan. 28, 2014, washingtonpost.com/news/volokh-conspiracy/wp/2014/01/28/judicial-engagement-is-not-the-same-as-judicial-activism/. See also George F. Will, “Why Conservatives Need Judicial Activism,” Washington Post, Jan. 23, 2014, A17. For an earlier variant of these themes, not mentioning judicial engagement, see Randy Barnett, “Restoring the Lost Constitution, Not the Constitution in Exile,” 75 Fordham Law Review 669 (2006).
The chief proponent: “Merry Band of Litigators Celebrates 20 Years,” Institute for Justice, ij.org/news/merry-band-of-litigators-celebrates-20-years/.
“fully enforce”: “A Brief History of Fake Judging,” Institute for Justice, ij.org/center-for-judicial-engagement/programs/a-brief-history-of-fake-judging/.
In the age: See, for example, “Economic Liberty,” Institute for Justice, ij.org/pillar/first-amendment/?post_type=case; “Private Property,” Institute for Justice, ij.org/pillar/private-property/?post_type=case; and “First Amendment,” Institute for Justice, ij.org/pillar/first-amendment/?post_type=case.
the chief’s instinct: Roberts’s scrupulous concern for the Court’s prestige—and authority—was fully voiced in a little-noticed dissent in early 2018. The chief believed that Congress had overstepped its bounds in effectively dismissing a lawsuit brought by a litigant. While Congress does control much of the jurisdiction of the federal courts, Roberts argued that Congress wasn’t allowed to be choosing winners and losers in individual cases. Patchak v. Zinke, No. 16-498 (2018).
On the one hand: Trump v. Hawaii, No. 17-965 (2018) (travel ban); Gill v. Whitford, No. 16-1161 (2018) and Benisek v. Lamone, No. 17-333 (2018) (partisan gerrymandering); Abbott v. Perez, No. 17-586 and 17-626 (2018) (racial gerrymandering in Texas); South Dakota v. Wayfair, No. 17-494 (2018) (Internet sales tax); and Husted v. A. Philip Randolph Institute, No. 16-980 (2018) (purging voting rolls).
on the other hand: Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111 (2018) (discrimination based on sexual orientation); National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (2018) (information about abortion); and Janus v. AFSCME, No. 16-1466 (2018) (public labor unions), overruling Abood v. Detroit Board of Education, 431 U.S. 209 (1977). See also Arlene’s Flowers v. Washington, No. 17-108 (2018), in which the Court mystifyingly declined to face exactly the question presented in Masterpiece Cakeshop but in which the odd facts of Masterpiece Cakeshop didn’t exist.
thumbs-up: Trump v. Hawaii, No. 17-965 (2018) (travel ban); Gill v. Whitford, No. 16-1161 (2018) and Benisek v. Lamone, No. 17-333 (2018) (political parties); Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111 (2018) (religious freedom); and National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (2018) (medical interests of pregnant women).
thumbs-down: Trump v. Hawaii, No. 17-965 (2018) (travel ban); Gill v. Whitford, No. 16-1161 (2018) and Benisek v. Lamone, No. 17-333 (2018) (reapportionment); Husted v. A. Philip Randolph Institute, No. 16-980 (2018) (minority voting); Abbott v. Perez, No. 17-586 and 17-626 (2018) (racial gerrymandering); and Janus v. AFSCME, No. 16-1466 (2018) (public labor unions).
That last decision: Janus v. AFSCME, overruling Abood v. Detroit Board of Education, 431 U.S. 209 (1977).
not allowed to say: See, for example, Garcetti v. Ceballos, 547 U.S. 410 (2006).
straddling the problem: In Vieth v. Jubelirer, 541 U.S. 267 (2004), a case declining to curb partisan gerrymandering in Pennsylvania, Kennedy wrote a lone concurrence that held out the alternative possibility if a workable judicial standard could be found.
In a case from: Minnesota Voters Alliance v. Mansky, No. 16-1435 (2018).
Only 34 percent of its rulings: Adam Liptak & Parlapiano, “Conservatives in Charge, the Supreme Court Moved Right,” New York Times, June 28, 2018, nytimes.com/interactive/2018/06/28/us/politics/supreme-court-2017-term-moved-right.html.
The best of these ideas: See, for example, Lee Drutman, “The Case for Supreme Court Term Limits Has Never Been Stronger,” Vox, Jan. 21, 2017, vox.com/policy-and-politics/2017/1/31/14463724/case-for-supreme-court-term-limits; Norm Ornstein, “Why the Supreme Court Needs Term Limits,” Atlantic, May 22, 2014, theatlantic.com/politics/archive/2014/05/its-time-for-term-limits-for-the-supreme-court/371415/; Stuart Taylor Jr., “Life Tenure Is Too Long for Supreme Court Justices,” Atlantic, June 2005, theatlantic.com/magazine/archive/2005/06/life-tenure-is-too-long-for-supreme-court-justices/304134/; and “Term Limits,” Fix the Court, fixthecourt.com/fix/term-limits/.
“the nation’s premier”: Richard A. Posner, Aging and Old Age (Chicago: University of Chicago Press, 1995), 180.
When the Framers: See, for example, Steven G. Calabresi & James Lindgren, “Term Limits for the Supreme Court: Life Tenure Reconsidered,” 29 Harvard Journal of Law & Public Policy 769, 788 (2006).
When he was a lawyer: John M. Broder & Carolyn Marshall, “White House Memos Offer Opinions on Supreme Court,” New York Times, July 30, 2005, A11.
So, too, would be: See Joshua D. Hawley, “The Most Dangerous Branch,” National Affairs, Fall 2012, nationalaffairs.com/publications/detail/the-most-dangerous-branch. Hawley clerked for Chief Justice Roberts and later was elected attorney general of Missouri.
“If my fellow citizens”: Holmes to Harold Laski, Mar. 4, 1920, quoted in Richard A. Posner, The Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press, 1993), 222.