“DEMOCRACY IS NOT A GAME”
On November 2, 2010, Republicans routed Democrats in the midterm elections. The GOP won control of the House of Representatives, with a gain of sixty-three seats, and cut the Democrats’ margin in the Senate to fifty-three to forty-seven. The results amounted to a repudiation of Obama’s agenda.
The following morning, the justices heard an archetypical case of the Roberts era. It provided a chance for the Court to lower the barrier between church and state, and to use a procedural device to do so. A state law in Arizona gave tax credits to individuals who paid tuition at parochial schools. A group of local taxpayers challenged the law, asserting that the credits amounted to government financial support of religion, in violation of the First Amendment. The specific issue in Arizona Christian School Tuition Organization v. Winn was whether the taxpayers had standing even to challenge the law. This was another challenge to a conservative bête noire: Chief Justice Warren’s famous 1968 opinion in Flast v. Cohen, which held that taxpayers had the right to challenge actions that they believed amounted to government support of religion, in violation of the First Amendment.
Arizona Christian was the right’s latest chance to cut back on Flast. In the oral argument, Anthony Kennedy sounded like a Tea Party protester: “I must say, I have some difficulty that any money that the government doesn’t take from me is still the government’s money.” The result in the case was predictable—a 5–4 ruling that the taxpayers lacked standing to bring the suit. There were still only four liberals, but now two of them were new to the Court—and that, inevitably, changed the interpersonal dynamics for all nine justices.
Except when deciding cases, the Supreme Court operated somewhat like a university faculty. As dean, the chief justice established committees to allow the other justices to participate in the administrative business of the Court. The most coveted of these assignments was the building committee, because the justices took understandable pride in the beauty and durability of Cass Gilbert’s marble masterpiece. On that committee, O’Connor and Souter fought for years to keep garish fire exit signs out of the corridors. Kennedy also dueled with the architect of the Capitol over the egregious congressional visitor center, which wrecked the vista between the Court and the Capitol. Thomas, a computer buff, enjoyed his tenure on the technology committee.
There was no doubt about the least desirable assignment. One justice always had to serve on the cafeteria committee, which dealt with the windowless and forlorn diner-style restaurant located in the Court’s basement. By tradition, this assignment went to the junior justice. Because Breyer spent eleven years with the least seniority, he put in the most time on cafeteria matters. In his characteristically earnest way, Breyer spearheaded the introduction of wrap sandwiches, which he remembered fondly from the courthouse cafeteria in Boston. He mediated conflicts in matters of social class; Supreme Court police officers wanted meatloaf and mashed potatoes, while the law clerks demanded tofu. To address the persistent deficits generated by the enterprise, Breyer tried, with mixed success, to arrange for tour groups to be deposited within tempting distance of the cafeteria.
Kagan, now the newest justice, took another approach. Just as she brought a food-and-fun philosophy to Harvard Law School, she tried a similar experiment at the Supreme Court: she engineered the acquisition of a frozen yogurt machine in the cafeteria. It was perhaps testimony to the dour nature of life at the Supreme Court that such a modest enhancement was so celebrated. Even Roberts took to saluting Kagan’s frosty coup in his speeches.
Kagan, who sometimes referred to herself as the Frozen Yogurt Justice, made her presence felt in more jurisprudentially significant ways as well, in large part thanks to her relationship with Ginsburg. It was perhaps predetermined that Ginsburg would adopt Kagan as a protégée. Both were secular Jews from New York City who spent much of their lives as law professors. Ginsburg’s daughter, Jane, who was five years older than Kagan, was also a law professor at Columbia. And Kagan, unlike Jane, was ebullient and outgoing, like Marty Ginsburg, whose death roughly coincided with Kagan’s arrival. Ruth Ginsburg made Kagan her frequent date for the opera. For her part, Kagan kept her word to the senators and volunteered to go shooting with Scalia. To her surprise, she liked the guns (as well as Scalia), returned for more, and quickly graduated from clay pigeons to actual birds. The opera soon paled in comparison.
Now that Ginsburg had replaced Stevens as the senior justice on the liberal side, she had the responsibility for assigning the main dissenting opinions when the Court split in its predictable fashion. She gave Arizona Christian to Kagan, and here the Court saw for the first time what kind of justice Kagan would be in the way that mattered most—her writing. Kagan’s voice was straightforward and colloquial, almost chatty. In her dissent, she assailed the supposed distinction the Court drew between a state giving tax credits (permissible) and direct subsidies (impermissible) to religious schools. “Suppose a State desires to reward Jews—by, say, $500 per year—for their religious devotion,” Kagan wrote. “Should the nature of taxpayers’ concern vary if the State allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend? Or assume a State wishes to subsidize the ownership of crucifixes. It could purchase the religious symbols in bulk and distribute them to all takers. Or it could mail a reimbursement check to any individual who buys her own and submits a receipt for the purchase. Or it could authorize that person to claim a tax credit equal to the price she paid. Now, really—do taxpayers have less reason to complain if the State selects the last of these three options? The Court today says they do, but that is wrong.” Later, she wrote: “I count 14 separate cases (involving 20 appellate and district courts) that adjudicated taxpayer challenges to tax expenditures alleged to violate the Establishment Clause. I suspect I have missed a few.”
It was entertaining reading, but as a dissenting opinion that was all it was. In the Court’s current configuration, Kagan could look forward to writing a lot more of them.
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Alito, on the other hand, quickly established himself as an influential player in the conservative majority. On the big issues—civil rights, Citizens United, gun control—Alito was a reliable vote for the Roberts team, although there were differences, too, in his approach. Scalia and Thomas had a libertarian streak, especially in First Amendment cases, but Alito hewed to the more authoritarian tradition on the American right. In this way, Alito resembled Rehnquist more than Roberts.
While Scalia and Thomas seemed obsessed with the eighteenth-century world of the framers and Roberts channeled the corporate priorities of the Republican establishment, Alito had a different focus: the 1960s counterculture. When he came to Washington in 2006, Alito had a nearly invisible public profile, but he reinvented himself there as a culture warrior. Alito made speeches before groups like the Intercollegiate Studies Institute, a student leadership organization dedicated to “teaching future leaders the timeless principles that make America free and prosperous—the core ideas behind the free market, the American Founding, and Western civilization that are rarely taught in the classroom.” Likewise, Alito spoke at a fund-raiser for the American Spectator magazine, a right-wing outlet best known for its attacks on Anita Hill and investigations of Bill Clinton’s sex life.
In his speech, Alito joked that the Spectator was the “very center of the vast right-wing conspiracy,” but that was actually a pretty apt description. Alito divided the country into two worlds—that of the conservatives’ hero Ronald Reagan and that of liberals and their law schools. (The justice also repeatedly mocked Vice President Biden for an act of plagiarism he had committed many years earlier.) Alito juxtaposed the first “be-in” in San Francisco with the inauguration of Ronald Reagan as governor. “On October 26, 1967, John McCain’s plane was shot down over North Vietnam,” Alito said. “On November 30, Eugene McCarthy announced that he would seek the Democratic presidential nomination, promising to restore hope and bring about change,” he continued—to much knowing laughter at the allusion to Barack Obama’s 2008 slogan. (Like the other justices, Alito was not bound by formal ethical rules. But if he had still been a lower-court judge, his speech to raise money for the Spectator would have been inappropriate. In any case, Alito’s behavior was more dubious than anything Thomas did, even though Thomas received a great deal more attention and criticism.)
Alito’s aversion to anything-goes libertarianism was especially evident in his approach to cases involving free speech. Over the years, debates about vulgar or unpopular speech provided the grist for some of the Court’s most famous and controversial decisions. But under Roberts, the Court reached a consensus that the government had little or no power to regulate in this area. Two cases proved the point. In 2010, the justices struck down a federal law that prohibited the sale of “crush videos”—which show small animals, often woodland creatures, being killed with a woman’s bare foot or stiletto heel. The Court said Congress could ban the torture itself, but a limit on depictions of such behavior amounted to a violation of free speech. In a similar vein, the Court in 2011 overturned a multimillion-dollar judgment against members of the Westboro Baptist Church in Topeka, a fringe religious group with fanatically antigay views, for protesting at the funeral of a marine killed in Iraq. Because the protest took place on public land, well out of sight or hearing of funeral attendees, the Court said the damage award violated free speech rights.
Both decisions were 8–1, with only Alito in dissent. In the “crush” case, Alito, who owns a springer spaniel named Zeus, lingered over the horrific details of the videos. For example: “A kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head.” Alito concluded that “the harm caused by the underlying criminal acts greatly outweighs any trifling value that the depictions might be thought to possess.”
Alito was, if anything, even more outraged by his colleagues’ decision in the case involving the funeral, Snyder v. Phelps. (The antics of the Westboro Baptist Church were familiar to viewers of cable news. Notwithstanding their name, the defendants were not “Baptist,” or even a “church,” but rather a single family led by a charismatic lunatic named Fred Phelps. His daughter Margie, a lawyer, argued the family’s case in the Supreme Court and did a creditable job.) “Petitioner Albert Snyder is not a public figure,” Alito wrote in his dissent. “He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event [and then] launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.” He went on, “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.”
Roberts, for the majority, had the last word in the case, and he made his point eloquently, as usual: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.” (The chief justice used his family back in Indiana as a kind of reality check. Roberts’s brother-in-law made a point of telling him that he agreed with Alito.)
The decision in Snyder v. Phelps, which came down on March 2, 2011, showed Roberts at his best. The oral argument in Arizona Free Enterprise Club v. Bennett, which took place later that month, featured the chief justice at his worst.
The case represented the Court’s first return to the subject of campaign finance since Citizens United the previous year. The public had yet to see the full implications of the decision. Most of the campaign finance reports from the 2010 election had not yet been filed or digested. What became clear in the course of the oral argument on March 28, 2011, was that the conservative justices knew what they had achieved in Citizens United—and they wanted to push their position forward.
The case concerned the constitutionality of the Arizona Citizens Clean Elections Act, which had been passed by the voters in 1998, to address the state’s appalling history of political corruption. This fairly modest reform established a system of optional public funding of campaigns for certain state offices. A candidate who chose to accept public funding would receive extra money from the state if his or her privately funded opponent exceeded a certain set spending limit. The basic idea was simple: to keep elections competitive if a privately funded candidate was vastly outspending a publicly funded one. The question in the case was whether the First Amendment permitted the government subsidies.
Kagan dominated the questioning of William Maurer, the lawyer who was challenging the law. Her point was straightforward—that no one’s right to free speech was being violated by this law. “There’s no restriction at all here; it’s more speech all the way around?” she said.
“I would disagree with that, respectfully, Your Honor,” Maurer answered. “There is a restriction here. Every time an independent expenditure group or a privately financed candidate speaks above a certain amount, the government creates real penalties for them to have engaged in unfettered political expression.”
“Well, doesn’t the government actually just give a selective subsidy?” Kagan continued. “It’s not a penalty, it’s just saying, in order to run an effective public financing system, when you speak, we’re going to give a subsidy over a certain amount. So the trigger does not trigger a penalty; it triggers a subsidy.”
Roberts said nothing during Maurer’s argument, but when Bradley Phillips, the lawyer for Arizona, rose to defend the law, the chief justice tore into him. He raised several hypotheticals (mostly far-fetched) about multicandidate races and how the law might penalize the privately funded candidates. He then zeroed in on a distinction that had been drawn in Citizens United and other cases—one that reflected just what a mess the Court’s campaign finance decisions had created.
Since the days of Theodore Roosevelt, the idea behind keeping corporations out of politics was to level the playing field. Without these limits, corporations would have too much political power. In a 1990 case called Austin v. Michigan Chamber of Commerce, the Court made the sensible observation that limits on campaign contributions by corporations served to curb the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” But Austin was one of the cases overturned by Citizens United, and Kennedy’s opinion went on to say that Congress never could try to level the playing field with regard to campaign finance; that was now a forbidden rationale. Rather, the only permissible purpose for campaign laws was to fight corruption, which the Court defined in a very narrow way. Congress could outlaw only quid pro quo bribery, nothing more.
Against this confusing, and largely senseless, background, Roberts sprung a trap at the oral argument.
“Counsel, do you agree that under our precedents, leveling the playing field for candidates is not a legitimate State purpose?” Roberts asked William Jay, the lawyer in the solicitor general’s office who was defending the Arizona law for the Obama administration.
“We do, Mr. Chief Justice,” Jay said. “That, of course, is not what’s at work here.”
Then Roberts pounced. “Well, I checked the Citizens Clean Elections Commission website this morning,” he said, “and it says that this act was passed to, quote, ‘level the playing field’ when it comes to running for office. Why isn’t that clear evidence that it’s unconstitutional?”
It was a nimble piece of lawyering by the chief justice—a touché moment. But to a layperson, it was an absurdity. The state of Arizona was caught trying to level the playing field—in other words, to do what most people would think was the right thing.
Jay did his best to recover. “Well, Mr. Chief Justice, whatever the Citizens Clean Elections Commission says on its website, I think isn’t dispositive of what the voters of Arizona had in mind when they passed this initiative,” he said. “The Court has recognized since Buckley v. Valeo that public financing serves a valid anticorruption purpose, and it does so because it eliminates the influence of private contributions on the candidates who take public financing.” Jay was attempting to speak the chief’s language, albeit in a clearly losing cause.
It was a moment that showed just how much the Court missed Sandra Day O’Connor. It was not just that she was an Arizonan who understood why her state had tried, in this small way, to clean up its politics. But O’Connor had actually run for political office (as no one on the Roberts Court had). She understood the danger of giving individuals and companies unlimited freedom to spend. But Roberts was on a mission—to deregulate American politics. And the chief had the votes.
No one knew this better than Stephen Breyer. He was seventy-two years old at this moment, not old for a Supreme Court justice, but not young, either. The days of his great collaboration with O’Connor were six years in the past. He had built his professional life around the idea that government could be a force for good in America. In particular, he had written a book, Active Liberty, that said limits on campaign contributions were the best way to preserve democratic values. And now he saw that the Court was dismantling those limits, sooner rather than later. Breyer gave in to his frustration.
“And what about—it’s a general question. Answer this if you wish. Don’t if you don’t want to, and the same goes for your opponent,” Breyer stammered, near the end of the argument in the Arizona case. “But as I hear this argument, what’s going through my mind is we are deeply into the details of a very complex bill. McCain-Feingold is hundreds of pages, and we cannot possibly test each provision which is related to the others on such a test of whether it equalizes or incentivizes or some other thing, because the answer is normally we don’t know.” Breyer could see that Roberts and the others were subjecting all campaign finance laws to such exacting scrutiny that none of them could ever survive.
Breyer went on. “And it is better to say it’s all illegal than to subject these things to death by a thousand cuts, because we don’t know what will happen when we start tinkering with one provision rather than another. That thought went through my mind as I’ve heard this discussion. Comment or not upon it as you wish.”
Nervous laughter filled the courtroom. The justices often made speeches in the form of questions, but this was a speech in the form of a speech. No one knew what to say. As the day’s events showed, Kagan was still in there fighting, but Breyer had thrown in the towel. Just give up on all campaign finance limits. Return American politics to the law of the jungle.
By the customary vote of 5–4, the Court declared the Arizona law a violation of the First Amendment. The opinions appeared to be a window to the next quarter century at the Supreme Court: Roberts for the majority, Kagan (again assigned by Ginsburg) in the lead dissent. Like Citizens United, Arizona Free Enterprise showed the conservative agenda for change. Roberts was a modern Republican, not an old-fashioned one (like Harlan, Stewart, Powell, or O’Connor) who believed in judicial restraint. Instead, Roberts was engaging in a consummate act of judicial activism, overruling the will of Arizona’s voters to serve a newly invented legal theory. And, most obviously, the chief justice was doing the bidding of the contemporary Republican Party, which hated campaign finance reform, while Kagan was speaking for the Democrats, who embraced it.
“ ‘Leveling the playing field’ can sound like a good thing,” the chief justice wrote for the majority. “But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the ‘unfettered interchange of ideas’—not whatever the State may view as fair.”
Like the president who appointed her, Kagan sought to limit the power of the Court and to defer to the democratically elected branches of government. This case, like so many others, revealed how the parties had switched places at the Supreme Court since the 1960s. Then, it had been the Democrats who were the activists, striking down laws that were not to their liking. Now it was the Republicans. “This case arose because Arizonans wanted their government to work on behalf of all the State’s people,” Kagan wrote in her dissent. “On the heels of a political scandal involving the near-routine purchase of legislators’ votes, Arizonans passed a law designed to sever political candidates’ dependence on large contributors. The system discriminated against no ideas and prevented no speech. Indeed, by increasing electoral competition and enabling a wide range of candidates to express their views, the system furthered First Amendment values. Less corruption, more speech. Robust campaigns leading to the election of representatives not beholden to the few, but accountable to the many. The people of Arizona might have expected a decent respect for those objectives. Today, they do not get it.… Truly, democracy is not a game.”