SEPTEMBER 3, 2013
THERE IS A TELLING MOMENT early in the new book, The Roberts Court: The Struggle for the Constitution, when author Marcia Coyle quotes a 2011 interview with Associate Justice Ruth Bader Ginsburg:
What I care most about, and I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.
Naïveté is not a term one associate with Ginsburg, nor is it one the circumspect Coyle is apt to use. But Coyle is also too good a journalist to let Ginsburg leave it there.
The court, Coyle notes, sits “atop a political branch of government” where judges and justices “get their jobs through a political process: political recommendations to the president, appointment by the president, and confirmation by the Senate.” The act of being appointed to the court is to enjoy the ultimate spoils of a political victory. But as Coyle points out, a number of the current justices made their careers — and paved the road to the court — by first caging plum positions in the Executive Branch (Chief Justice Roberts, Justice Clarence Thomas, Justice Samuel Alito, Justice Elena Kagan among them).
Coyle doesn’t try to reconcile Ginsburg’s comments with reality. She simply rewrites her: “Ginsburg’s real concern and fervent hope were that the Court not be considered a partisan institution.”
Few serious students of the court would have the temerity to correct one of its sitting members. Coyle is one of the few who has earned the right. The Chief Washington Correspondent for The National Law Journal, a regular contributor on PBS’s NewsHour, Coyle has spent 25 years covering the court and has developed unprecedented access to its inner-workings.
The result is an extraordinary book filled with fascinating insights from court clerks, administrators, litigants, government officials, and a number of justices willing to go on the record — if not always by name — then by position.
The reason why Coyle can tell us what Ginsburg and other justices mean is that, to an unusual degree, she knows them. And they, in turn, trust her.
This trust is no doubt based on Coyle’s discretion, her respect for the institution, but above all, her obvious appreciation for the court’s work product. She is perhaps the only journalist working today capable or willing to apply close textual analysis of the court’s opinions.
Quoting David Souter, Coyle writes that to understand the court, one “has to read the Court’s opinions.” In this age of instant media gratification, it may seem like a quaint notion. Coyle reminds us that it is essential. Her book focuses on three of “the most aggressive decisions yet of the conservative court,” those dealing with schools and racial diversity (the Seattle-Louisville integration decision), gun rights (District of Columbia v. Heller), campaign finance (the Citizens United case).
But she also tosses in the joker of the pack, the court’s decision in Obamacare, in which Roberts broke with his fellow conservatives to save the president’s most important domestic initiative. The hardest decision to square with the other three Coyle manages to put it in the broader context of how the Court does its job:
In the four rulings […] the justices confront and choose between principles amidst a modern-day tsunami of special interests trying to sway the final decision.
The facts vary but the pressures on the court remain constant. For all its power, Coyle knows the court remains the most isolated, most vulnerable, and most insecure branch of government. “In the end,” she writes, “the public’s judgment remains the key to the Court’s most important and only institutional power: it’s legitimacy in the eyes of the American people.”
So how is the court doing?
Coyle lets the facts and the justices own words speak for themselves.
In his confirmation hearing Chief Roberts winningly said: “Judges are like umpires. Umpires don’t make the rules, they apply them. […] I will remember that it’s my job to call balls and strikes, and not pitch or bat.” Coyle quotes Roberts as also saying he hoped to be considered “a modest judge,” humble, “with respect for precedent and the principle of stare decisis […] I don’t think the courts should have a dominant role in society.”
Roberts’s opinions on the court show he has been anything but modest or humble in asserting the court’s position or his constitutional views.
Take guns. For 70 years the court held that the Second Amendment was a militia-collective right, not an individual one. Yet in Heller, the case involving stringent gun restrictions, the Roberts Court turned to activism. Without being asked by the parties, and “with no great national problem vexing election officials,” the court reframed the questions before it in the broadest possible way. Seemingly, for the express purpose of invalidating DC’s gun laws.
It was, Coyle writes, “an aggressive conservative Court taking on a long-sought objective on the conservative political agenda.” But not all conservatives were pleased. She quotes J. Harvie Wilkinson of the US Court of Appeals for the Fourth Circuit who compared Heller to Roe v. Wade and criticized the Roberts Court’s “failure to adhere to a conservative judicial methodology in reaching its decision” by bypassing “the ballot and seek to press the political agenda through the courts.”
Of course, in the area of money and elections, the Roberts Court gave the conservative movement a great deal of encouragement to pursue the ballot box. By removing limits on corporate and union spending in Citizen’s United, the Court once again went even further than the parties had asked. “We won bigger than we went for,” gloated Citizens United president David Bossie. When coupled with its decision in Knox v. Service Employees International Union, curtailing unions’ ability to raise money, Citizens United gave corporate America a huge advantage.
So much for Justice Ginsburg’s desire that the court be seen as above partisan politics: Coyle points out that Citizens United “quickly became the Roberts Court’s most unpopular decision and the centerpiece of critic’s continuing claims that the Court was pro-business.” In fact, the “Roberts Court ruled for business 61 percent of the time to 46 percent for the Rehnquist Court and to 42 percent for all Supreme Courts since 1953,” which Coyle notes is a “statistically significant” difference.
The current court has proven just as assertive in matters of race. In the school desegregation case, for example, Coyle shows how the Chief Justice tortured the language of Brown v. Board of Education — striking down segregation — to justify striking down local efforts at desegregation. Coyle leaves it to Justice Stephen Bryer’s dissent to note about Robert’s opinion:
[It] distorts precedent, it misapplies the relevant constitutional principles, it announces legal rulings that will obstruct efforts [to combat segregation], it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines [Brown and the Equal Protection Clause].
The Voting Rights Act case which came down after the book was published only adds weight to Coyle’s claim that the Roberts Court seeks to revisit and rewrite a number of previous race-based decisions.
But that does mean Roberts is predictable. “Each Supreme Court term is a story in itself,” Coyle writes, “and as each story unfolds, an unpredictable twist or turn almost always surprises the conventional view of the nation’s highest court.”
Much has already been written on Roberts’s unexpected decision to join the majority in upholding Obamacare. But Coyle’s interpretation of the forces that drove Roberts to defer to the decisions of elected officials strikes me as the most nuanced and believable. It is also the least cynical. Rather than a strategic vote, Coyle views Roberts’s decision to save health care reform as consistent with his “respect for the democratically accountable branches of government” which was “a principle that Roberts had espoused during his confirmation hearings.”
It is true that Roberts had not embraced the same level of deference to gun laws or efforts at desegregation or Congressional campaign regulations. But that does not mean he lacks principles. Coyle sees a democrat and a federalist (small “d” and a small “f”) who holds statist views of government institutions, a negative view of racial classification, and an inherent distrust of the plaintiff’s bar. He has also been consistent in his effort to apply his version of Constitutional principles to achieve his version of a fair and just society.
To be sure, not everyone agrees with him. “Justice Scalia has a fixed view of what is good for the country,” one justice told Coyle, adding: “I have my own view.” As the scholars at Santa Anita will tell you, different opinions are what make a horse race. What matters to Coyle and the future of the Court is that those opinions are explained.
“A principled decision is one in which the Court candidly and convincingly explains why this principle prevailed over that principle,” Coyle writes, quoting Justice Souter:
It’s the choice of principles that is the tough part. The public judgment has got to be a judgment on whether they believe what the Court says, whether they believe what the Court says is convincing in making the choice of principles.
Reading Coyle’s book reminded me of my Constitutional Law Professor, Robert Cole. A 19th century-style Romantic, he was fond of telling us that the best training for a Supreme Court scholar is the study of poetry. Words, after all, are the court’s life-blood. Words are what breaths life into the institution itself, animating its collective thoughts into actions, moving and controlling the body politic. Other branches of government control battalions and bear the imprimatur of popular elections. But like the greatest poet or the lowest Hollywood hack, the Supreme Court lives or dies on its writing. And words are fragile things.
The pen is mightier to the sword only if what is written is understood. No matter how poetic, words are limited; they fail to convey nuance, prove powerless to misinterpretation, are too easily tortured. Yet words are all we have to decipher the court’s methods and motives.
Coyle’s textual approach only seems simple. It’s hard, often imprecise, but honest work, the kind of intellectual criticism the best writers can only hope for from their critics, but rarely receive. No wonder the justices seem willing to speak to Coyle on and off the record. In a field dominated by a chattering class of talking heads and academic media darlings, Coyle offers that rarest of thing: an objective, well-sourced and researched piece of journalism; fair, because it is based on facts and what people said — and balanced, because it offers all relevant perspectives with an even-hand and equal treatment.
It is too early to call any book on the subject of the Roberts’ Court definitive. But Coyle’s is the best to come out so far, and the most useful.