This book is based principally on my interviews with the justices and more than forty of their law clerks. The interviews were on a not-for-attribution basis—that is, I could use the information provided but without quoting directly or identifying the source.
In addition to the works cited in the text and below, I have benefited from the day-to-day coverage of the Supreme Court press corps, especially that of Adam Liptak, Lyle Denniston, Dahlia Lithwick, Tony Mauro, David Savage, Nina Totenberg, Pete Williams, and my CNN colleague Bill Mears. My thanks also to the Public Information Office of the Court, its excellent website, www.supremecourt.gov, and Kathy Arberg, Patricia McCabe Estrada, and Scott Markley.
The Court’s opinions are widely available online. I generally relied on Cornell University’s www.law.cornell.edu/supct/. For transcripts and recordings of the Court’s oral arguments, www.oyez.org, created by Professor Jerry Goldman of the Chicago-Kent College of Law, is indispensable. I am also a regular reader of www.scotusblog.com, the blog of record about the Court, and http://howappealing.law.com.
1 only a single provision: I am grateful to Professor Akhil Reed Amar, of Yale Law School, for introducing me to the history of the oath. In particular, I relied on his book America’s Constitution, pp. 177–78.
2 whether he did: For an evocative account of Washington’s inauguration, see Ron Chernow, Washington: A Life, ch. 46.
3 wrote to the chief justice about it: Time, March 25, 1929, http://www.time.com/time/magazine/article/0,9171,846311,00.html#ixzz1WAMUAeom.
4 standing athwart history yelling “Stop!”: William F. Buckley Jr., “Publisher’s Statement,” National Review, Nov. 19, 1955, p. 5.
1 friends and colleagues found Obama more analytical than confrontational: David Remnick, The Bridge, pp. 163–67.
2 “Do you even want popcorn?”: Remnick, The Bridge, p. 189.
3 “for a lot of the changes that have been made”: Remnick, The Bridge, pp. 207–08.
4 compromise on racial profiling by the police: Remnick, The Bridge, pp. 350–51.
1 a justice who might overturn Roe v. Wade: David Remnick, The Bridge, p. 434.
2 “Whoever had the 15- to 20-minute slot won that money”: Roger Parloff, “On History’s Stage: Chief Justice John G. Roberts Jr.,” Fortune, Jan. 3, 2011, http://management.fortune.cnn.com/2011/01/03/on-historys-stage-chief-justice-john-roberts-jr/.
3 Roberts was the leading figure in his generation: See http://www.scotusblog.com/2006/03/the-expansion-of-the-supreme-court-bar/.
1 “in the event that you do lead the defense team at the military tribunals, to offer my help”: Jonathan Mahler, The Challenge, ch. 4.
2 “two implants on each side and a total of three pints of fluid”: Dan P. Lee, “Paw Paw & Lady Love,” New York, June 5, 2011, http://nymag.com/news/features/anna-nicole-smith-2011–6/.
1 the quorum for the official prayers: Abigail Pogrebin, Stars of David, p. 19.
2 “That makes no sense”: Speech by Ruth Bader Ginsburg, Tenth Circuit Conference, Aug. 27, 2010, http://www.c-spanvideo.org/program/295217-1.
3 “the right most valued by civilized men”: Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting).
4 “not legal reasoning but fiat”: Robert Bork, The Tempting of America, p. 114.
5 “her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen”: Ruth Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” 63 North Carolina Law Review 375 (1985).
6 “the tall doctor and the little woman who needs him”: http://www.nytimes.com/2009/07/12/magazine/12ginsburg-t.html?_r=2&pagewanted=all.
7 “dissenting judge believes the court to have been betrayed”: Charles Evans Hughes, The Supreme Court of the United States (1936), p. 68, quoted in Ruth Bader Ginsburg, “The Role of Dissenting Opinions,” 95 Minnesota Law Review 1 (2010), http://www.minnesotalawreview.org/wp-content/uploads/2011/07/Ginsburg_MLR.pdf.
8 “The Constitution, as we have known it, is gone”: John Q. Barrett, “Commending Opinion Announcements by Supreme Court Justices,” http://www.stjohns.edu/media/3/55c14b0772794f148fec48e3c14851a7.pdf. See also James F. Simon, FDR and Chief Justice Hughes, p. 256.
9 each read dissents from the bench exactly once: I am grateful to William Blake, of the University of Texas, for sharing his research with me. See William D. Blake and Hans J. Hacker, “The Brooding Spirit of the Law: Supreme Court Justices Reading Dissents from the Bench,” Justice System Journal 31(1): 1–25 (2010).
1 “public law litigation”: Abram Chayes, “The Role of the Judge in Public Law Litigation,” 89 Harvard Law Review 1281 (1976).
1 was able to assemble a majority in only a quarter of them: These statistics are drawn from the annual compilations by scotusblog.com.
1 took his rifle, a .22 carbine, with him on the subway: Joan Biskupic, American Original, pp. 21–22.
2 after a string of bank robberies: The Miller story is laid out in entertaining detail in Brian L. Frye, “The Peculiar Story of United States v. Miller,” NYU Journal of Law & Liberty 3(1): 48–82 (2008).
3 the colonists formed militias: Adam Winkler, Gunfight, pp. 103–04.
4 the 1976 platform opposed it: Reva B. Siegel, “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” 122 Harvard Law Review 191 (2008).
5 advocated for the individual rights view in conferences and seminars: Winkler, Gunfight, pp. 67, 97.
6 “for protection of himself, his family, and his freedoms”: Quoted in Siegel, “Dead or Alive.”
7 later joined the Reagan Justice Department: Ibid.
1 Reagan-era Justice Department official with close ties to the conservative movement: Adam Winkler, Gunfight, p. 57.
2 drug dealers broke her car windows and drove into her back fence: Brian Doherty, Gun Control on Trial, p. 29.
3 Stevens who hewed more closely to the actual debates of the framers: Post by Jack Rakove, http://balkin.blogspot.com/2008/06/thoughts-on-heller-from-real-historian.html.
4 as did the state legislators who ratified their work: The most often cited critique of originalism remains Paul Brest, “The Misconceived Quest for Original Understanding,” 60 Boston University Law Review 204 (1980).
5 they never indicated that they understood their intentions should bind future generations: H. Jefferson Powell, “The Original Understanding of Original Intent,” 98 Harvard Law Review 885, 903 (1984).
6 and then find their twenty-first-century analogue: Winkler, Gunfight, pp. 283–86. See also Nelson Lund, “The Second Amendment, Heller, and Originalist Jurisprudence,” 56 UCLA Law Review 1343 (2009).
1 had voted against his confirmation three years earlier: Tony Mauro, The Blog of Legal Times, Jan. 14, 2009. http://legaltimes.typepad.com/blt/2009/01/a-chat-around-the-fireplace-for-obama-biden-and-the-supreme-court.html.
1 “adapt it to their own needs and uses”: Diane P. Wood, “Our 18th Century Constitution in the 21st Century World,” http://www.scotusblog.com/wp-content/uploads/2009/05/80_nyulr_1079_5-13-09_1224.rtf.
2 was the case of National Organization for Women v. Scheidler, in 2001: For a clear discussion of that case, see Emily Bazelon’s discussion in Slate, http://www.slate.com/articles/news_and_politics/jurisprudence/2010/04/defining_radical_down.html.
3 suddenly of a heart attack at the age of forty-two: Antonia Felix, Sonia Sotomayor: The True American Dream, pp. 12–14.
4 “mark that I wasn’t able to succeed at those institutions”: Quoted in Felix, Sonia Sotomayor, p. 39.
5 she toured Israel with a group of Latino activists: Lauren Collins, “Number Nine,” New Yorker, Jan. 11, 2010, p. 48.
6 including the son of her dentist: Collins, “Number Nine,” p. 48.
1 “make constitutional law on his own”: Jack Beatty, Age of Betrayal: The Triumph of Money in America, 1865–1900, p. 176. Beatty points out that Davis’s credibility was suspect because Karl Marx (!) complained that Davis had misquoted him in a report. On Santa Clara, see also Morton J. Horwitz, The Transformation of American Law, 1870–1960, pp. 66–71.
2 “ ‘the government is best which governs least’ ”: Horwitz, The Transformation of American Law, p. 33.
3 “then he did not stay bought”: Frick made the comment to the journalist Oswald Garrison Villard, who recounted it in his book Fighting Years, p. 181.
4 required extensive disclosure of campaign contributions and expenditures: Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes, The Law of Democracy, p. 334.
5 Warren Burger, Potter Stewart, Lewis Powell, and William Rehnquist: Seth Stern and Stephen Wermiel, Justice Brennan: Liberal Champion, p. 442.
6 Congress had tried to set up a tightly controlled system for financing campaigns: Frank J. Sorauf, Inside Campaign Finance: Myths and Realities, pp. 238–39.
1 named Bossie his “chief researcher” and the pair narrowed their focus to the personal and financial affairs of Bill and Hillary Clinton: Joe Conason and Gene Lyons, The Hunting of the President: The Ten-Year Campaign to Destroy Bill and Hillary Clinton, pp. 72–75.
2 various Washington journalists who printed or broadcast his accusations: Sidney Blumenthal, The Clinton Wars, pp. 76–77.
3 he had doctored certain transcripts to eliminate exculpatory information about Hillary Clinton: Howard Kurtz, “Some Reporters Heard Unedited Tapes,” Washington Post, May 11, 1998. See also Blumenthal, The Clinton Wars, pp. 443–44.
4 “conspiring against my husband since the day he announced for president”: Jeffrey Toobin, A Vast Conspiracy: The Real Story of the Sex Scandal That Nearly Brought Down a President, pp. 254–56.
1 social studies to fifth and sixth graders: For the reflection of one former Gloria Kagan student, see Blake Eskin, “The Ghost of Mrs. Kagan,” http://www.newyorker.com/online/blogs/newsdesk/2010/05/the-ghost-of-mrs-kagan.html.
1 embezzled funds from the insurance company to prop up the hotel: Bill Barnhart and Gene Schlickman, John Paul Stevens: An Independent Life, p. 31.
2 one of the boys was forced to open a safe in the first-floor library: Barnhart and Schlickman, John Paul Stevens, pp. 32–33.
1 spotty at best in recent years: Pete Williams of NBC News compiled the statistics: http://firstread.msnbc.msn.com/_news/2011/01/25/5914956-will-chief-justice-roberts-be-in-attendance-after-all. See also Adam Liptak, “For Justices, State of the Union Can Be a Trial,” New York Times, Jan. 23, 2012, http://www.nytimes.com/2012/01/24/us/state-of-the-union-can-be-a-trial-for-supreme-court-justices.html.
2 “juvenile spectacle”: Adam Liptak, “Six Justices to Attend State of the Union,” Jan. 25, 2011, New York Times, http://www.nytimes.com/2011/01/26/us/politics/26justices.html?_r=3.
1 “and have them all over”: http://www.abajournal.com/news/article/oconnor_lawyers_judges_need_to_wake_up_to_judicial_funding_threat_prep_for_/.
2 call meant that he had died: http://www.lvrj.com/news/robocall-mishap-shows-nevadans-dont-want-any-questions-at-1-a-m—105738278.html?ref=278.
3 “So forget it. It’s over!”: Jeffrey Rosen, “Why I Miss Sandra Day O’Connor,” July 1, 2011, http://www.tnr.com/article/politics/91146/sandra-day-o-connor-supreme-court-alito.
4 “It’s not always positive”: Joan Biskupic, “O’Connor Says Rulings Being ‘Dismantled,’ ” Jan. 5, 2010, http://www.usatoday.com/news/washington/judicial/2009-10-05-sandra-day-oconnor_N.htm.
1 laying out the absurdities of contemporary confirmation hearings: Elena Kagan, “Confirmation Messes, Old and New,” 62 University of Chicago Law Review 919 (1995), http://lawreview.uchicago.edu/archive/Front%20Page/Kagan/ConfirmationMessesOldAndNew.pdf.
2 “I know it when I see it”: Jacobellis v. Ohio, 378 U.S. 164, 197 (1964) (Stewart, J., concurring).
1 “their belief in citizen activism”: Theda Skocpol and Vanessa Williamson, The Tea Party and the Remaking of Republican Conservatism, p. 53.
2 “minimize the risk of another monarchy”: Glenn Beck, The Original Argument, p. xxv.
3 “in academia claim it to mean”: Mark R. Levin, Liberty and Tyranny: A Conservative Manifesto, pp. 57, 60.
4 family prominent in Republican politics: Jane Mayer and Jill Abramson, Strange Justice: The Selling of Clarence Thomas, pp. 144–45.
5 “And you pay a penalty if you don’t”: Quoted in Paul Starr, Remedy and Reaction, p. 87.
6 unless there was a mandate: Starr, Remedy and Reaction, pp. 87–88.
7 the conservative Heritage Foundation: The plan was created by Stuart Butler and Edmund Haislmaier. See http://online.wsj.com/article/SB10001424052970204618704576641190920152366.html.
8 repeated his support for the idea as recently as 2005: Josh Hicks, “Newt Gingrich’s Changing Stance on Health-Care Mandates,” Dec. 12, 2011, http://www.washingtonpost.com/blogs/fact-checker/post/newt-gingrichs-changing-stance-on-health-care-mandates-fact-checker-biography/2011/12/09/gIQAVl0lkO_blog.html.
9 “Constitutional Implications of an ‘Individual Mandate’ in Health Care Reform”: See http://www.fed-soc.org/publications/detail/constitutional-implications-of-an-individual-mandate-in-health-care-reform.
10 translating the Urbanowicz-Smith article into more colloquial language: David B. Rivkin Jr. and Lee A. Casey, “Constitutionality of Health Insurance Mandate Questioned,” Washington Post, Aug. 22, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR2009082103033.html.
1 Crow who made the $500,000 contribution to Liberty Central: Kenneth P. Vogel, Marin Cogan, and John Bresnahan, “Justice Thomas’s Wife Virginia Thomas Now a Lobbyist,” Politico, Feb. 4, 2011, http://www.politico.com/news/stories/0211/48812.html; Mike McIntire, “Friendship of Justice and Magnate Puts Focus on Ethics,” New York Times, June 18, 2011, http://www.nytimes.com/2011/06/19/us/politics/19thomas.html?pagewanted=all.
2 who are leading benefactors of the Tea Party movement: Eric Lichtblau, “Common Cause Asks Court about Thomas Speech,” New York Times, Feb. 14, 2011, http://www.nytimes.com/2011/02/15/us/politics/15thomas.html. The circumstances of the appearances by Thomas and Scalia at the Koch brothers’ event are not clear. In his financial disclosure statement, Thomas listed reimbursement for a Federalist Society event at the time and place of the Koch event.
3 “price to pay today for standing in defense of your Constitution”: The audiotape of this speech was first disclosed by Politico. Kenneth P. Vogel, “Defiant Clarence Thomas Fires Back,” Politico, Feb. 27, 2011, http://www.politico.com/news/stories/0211/50277.html.
4 “He does not believe in stare decisis, period”: Ken Foskett, Judging Thomas: The Life and Times of Clarence Thomas, pp. 281–82.
5 “the perversion of the Constitution took off during the presidency of Franklin Delano Roosevelt”: Kate Zernike, Boiling Mad: Inside Tea Party America, p. 70.
1 his speech to raise money for the Spectator would have been inappropriate: On Alito’s speeches for the Spectator, see Lee Fang, “Exclusive: Supreme Court Justice Sam Alito Dismisses His Profligate Right-Wing Fundraising as ‘Not Important,’ ” Nov. 10, 2010, http://thinkprogress.org/politics/2010/11/10/129395/sam-alito-republican-fundraiser/. See also http://lawprofessors.typepad.com/conlaw/2010/11/alito-and-ethics.html.
1 “the Court will accept that judgment”: John Q. Barrett, “Wickard v. Filburn (1942),” http://www.stjohns.edu/media/3/638cd994e8484fd3bdb841f31b11952f.pdf?d=201.
2 sweeping the hallways: Nina Totenberg, profile of Donald Verrilli, NPR, http://www.npr.org/2012/03/22/148947199/the-man-behind-the-defense-of-obamas-health-law.
1 “you can make people buy broccoli”: For a history of the broccoli example in the health care case, see James B. Stewart, “How Broccoli Landed on Supreme Court Menu,” New York Times, June 14, 2012, http://www.nytimes.com/2012/06/14/business/how-broccoli-became-a-symbol-in-the-health-care-debate.html?pagewanted=all.
1 “Some might consider the change trivial”: Stevens, Five Chiefs, p. 212.
2 he thought Congress had exceeded its powers under the commerce clause in creating the individual mandate: In addition to my own reporting, I relied on the following sources in my account of the Court’s deliberations: Jan Crawford, “Roberts Switched Views to Uphold Health Care Law,” July 1, 2012, http://www.cbsnews.com/8301-3460_162–57464549/roberts-switched-views-to-uphold-health-care-law/?tag=contentMain;contentBody; Paul Campos, “Roberts Wrote Both Obamacare Opinions,” Salon, July 3, 2012, http://www.salon.com/2012/07/03/roberts_wrote_both_obamacare_opinions/. See also http://www.volokh.com/2012/07/03/so-now-we-have-supreme-court-leaks-disagreeing-with-supreme-court-leaks/; http://www.volokh.com/2012/07/03/more-on-the-supreme-court-leak/.
3 “a little bit up in the air”: Quoted at http://www.volokh.com/2012/07/03/more-on-the-supreme-court-leak/.
4 “changing the relation between the citizen and the federal government”: Jan Crawford first made this connection. See http://www.cbsnews.com/8301-3460_162-57464549/roberts-switched-views-to-uphold-health-care-law/?tag=contentMain;contentBody.