American Justice 2014. Garrett Epps

      UNIVERSITY OF PENNSYLVANIA PRESS

      PHILADELPHIA

      Copyright © 2014 Garrett Epps

      All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

      Published by

      University of Pennsylvania Press

      Philadelphia, Pennsylvania 19104-4112

       www.upenn.edu/pennpress

      A Cataloging-in-Publication record is available from the Library of Congress

      Cover design by John Hubbard

      ISBN 978-0-8122-4718-3 hardcover

      ISBN 978-0-8122-9130-8 ebook

      For Kathy

      Mine ear is much enamour’d of thy note;

      So is mine eye enthralled to thy shape.

      This much I think I do know—that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.

      —Learned Hand

       Contents

      Preface

      Introduction: The Branch That Works

      1. Balls and Strikes: Chief Justice John Roberts—McCutcheon v. Federal Election Commission

      2. Justice of Hearts: Justice Sonia Sotomayor—Dissenting, Schuette v. Coalition to Defend Affirmative Action by Any Means Necessary

      3. Empathy for the Devil: Justice Antonin Scalia—Dissenting, Windsor v. United States (Redux)

      4. Enter Laughing: Justice Elena Kagan—Dissenting, Town of Greece v. Galloway

      5. Big Brother: Justice Anthony Kennedy—Hall v. Florida

      6. In a Different Voice: Justice Clarence Thomas—Susan B. Anthony List v. Driehaus

      7. Bringer of Chaos: Justice Stephen Breyer—National Labor Relations Board v. Noel Canning

      8. The Alito Court: Justice Samuel Alito—Harris v. Quinn

      9. No Exit: Justice Ruth Bader Ginsburg—Dissenting, Burwell v. Hobby Lobby Stores

      Epilogue: Justice in Red and Blue

      Appendix A: A Brief Guide to Supreme Court Procedure

      Appendix B: Biographies of Current Justices of the Supreme Court

      Appendix C: Major OT13 Cases Discussed in This Book

      Further Reading

       Preface

      In many ways, the US Supreme Court is as determinedly opaque as the National Security Agency. Though it maintains a talented public-information staff, the institution itself takes no responsibility whatsoever for explaining itself to the public. The product of the court’s work—its oral argument transcripts, opinions, and orders—is made available promptly. The real work of the justices, however—deciding which cases to accept, discussing who should win cases and why, picking justices to write opinions, and criticizing the successive drafts—takes place behind a veil of secrecy that, for most of the court staff and law clerks, would be professional death to pierce.

      Years after a justice dies, papers in a library may show how and why the court decided some issue. Historians revel in these sources, but for lawyers and citizens who must live today, they provide little help for understanding what the court is up to.

      The court’s secrecy is only part of the reason it is ill understood. A nine-member body has no “intention” the way an individual has. Thus the Supreme Court may not really “know” why it is doing what it is doing. Each decision is the sum of many calculations by lawyers, lower courts, and justices to shape issues in a certain way that produces a result. In time, this result may come to seem inevitable, but it almost certainly was not from the outset of the issue. (Think of the court’s iconic school desegregation decision in Brown v. Board of Education. History shows us a bitterly divided court grappling with the issue—until a unanimous opinion improbably emerged.) Wherever the justices may think they are going, the court is quite likely to end up somewhere else, blown off course by the winds of judicial politics. “It is quite true what philosophy says; that life must be understood backwards,” the philosopher Sören Kierkegaard wrote in 1843. “But then one forgets the other principle: that it must be lived forwards.”

      In the pages that follow, I have tried to give my sense of one year in the life of the Supreme Court—the “October 2013 term”—that began on the first Monday in October 2013 and (formally) ran until the day before the first Monday in 2014. In reality, OT13, as court watchers call it, reached its climax on the last day of June 2014, when the court delivered its final opinions in argued cases and adjourned.

      During the months between the first full conference of late September 2013 and the dramatic announcement of opinions in Burwell v. Hobby Lobby and Harris v. Quinn on June 30, the court heard arguments in seventy-two cases and issued opinions in seventy of them. (Two were “dismissed as improvidently granted,” or DIGed.) It also decided whether to hear some 7,500 cases submitted by petition for certiorari. Its opinions ranged from interpreting areas of the Constitution seldom before interpreted (e.g., when is the Senate in “recess” for purposes of presidential “recess appointment”?) to resolving mundane questions of statutory interpretation (e.g., do individual retirement accounts meet the statutory definition of “retirement funds” under the federal bankruptcy code?). Each opinion takes the court further into a legal future it cannot foresee. OT13, like every term, is a way station. Not for a generation, perhaps, will we know where the trail was leading.

      So view what you are about to read as a kind of traveler’s diary. It makes no pretense to prophecy. I don’t know where this court is going.

      My role as a court watcher is unusual. Though I am accredited to the court’s press gallery, my professional identity is as professor of law at the University of Baltimore. For twenty years, at five major law schools, I have studied and taught the court’s constitutional jurisprudence. In my reporting, I look for the legal sources of the court’s latest constitutional decisions; in my writing, I assess the court’s work frankly and without any of the reticence that beat reporting sometimes imposes. I am not at the court to be a dispassionate observer. I write what I think. Sometimes what the court does delights me—not necessarily because it is what I would have decided myself but because I think it is conscientious, careful judging that shows respect for history and precedent; at other times, when the court majority seems slapdash, petty, and partisan, I feel like Evelyn Waugh reading the poet Stephen Spender: “to see him fumbling with our rich and delicate language is to experience all the horror of seeing a Sevres vase in the hands of a chimpanzee.”

      At the opening of OT13, I was sixty-three years old. I grew up in the white middle class of the twentieth-century South. Until I was fifteen years old, I lived under segregation—a regime of white supremacy enforced by legal coercion and extralegal violence. During the 1960s, as if in a dream, I witnessed the collapse of this icy monolith and the birth of a new and freer order.

      That change occurred, in large part, because a generation of Americans decided—some eagerly, others with reluctance and dread—to bring to life the phrases “due process” and “equal protection” written into the Constitution in 1868.