Supreme Court
A Four-Decade Perspective on Life Inside the Supreme Court
The Chief: The Life and Turbulent Times of Chief Justice John Roberts. By Joan Biskupic. New York, N.Y.: Basic Books. 2019. Pp. 421. $32.00.
First: Sandra Day OâConnor. By Evan Thomas. New York, N.Y.: Random House. 2019. Pp. 476. $32.00.
Judicial biographies can shed important light on the personal lives, professional careers, intellectual evolution, ideological values, political experience, and judicial interactions and motivations of Supreme Court Justices. In that spirit, First1×1. Evan Thomas, First: Sandra Day OâConnor (2019). by Evan Thomas and The Chief2×2. Joan Biskupic, The Chief: The Life and Turbulent Times of Chief Justice John Roberts (2019). by Joan Biskupic illuminate in often fascinating ways the lives, experiences, and careers of Justice Sandra Day OâConnor and Chief Justice John Roberts, respectively. Each of these works draws on a wealth of previously undisclosed information to shed light on the twists and turns in their personal and professional lives and on the behind-the-scenes compromises, machinations, and negotiations that produced many of the most important constitutional decisions of the last four decades.
With impressive access to these Justices themselves, as well as to their colleagues on the Court, their law clerks over the years, and their political and personal friends and enemies, Biskupic and Thomas offer often surprising, lively, and engaging insights that should be of interest not only to lawyers, but also to thoughtful citizens more generally.
In these works, Thomas and Biskupic trace the evolution of the Supreme Courtâs jurisprudence from the Warren Court to the Roberts Court, and in so doing they shed light on how the Court functions and raise interesting and important questions about how we should evaluate its performance. Moreover, these two works are especially engaging together because of the sometimes quite surprising interconnections between these two Justices, even though they never served on the Supreme Court at the same time.
In this Review, I will attempt to lay out, in a highly abbreviated form, some of what I found to be the most enlightening facets of these works. In so doing, I will focus first, in Part I, on Justice OâConnorâs and Chief Justice Robertsâs lives and careers up to their appointments to the Supreme Court, and then, in Part II, on their respective contributions to our constitutional law and on the often eye-opening revelations Thomas and Biskupic share with their readers about the internal workings of the Court.
I. The Path to the Court
Sandra Day was born in 1930 in El Paso, Texas. Her family home, known as the Lazy B ranch, occupied roughly 160,000 acres of land along the Arizona-New Mexico border. The ranch had been in the Day family for more than a century. The house had no running water, indoor plumbing, or electricity. An only child until she was nine, Sandra had no neighboring children to play with, but endless numbers of horses, antelopes, coyotes, bobcats, and scorpions with which to amuse herself. Because schools in the area were of poor quality, in 1936 Sandraâs parents sent her to live for most of the year with her grandparents in El Paso, where she received a better education. Speaking of this time in her life, Sandra described herself âas shy and unconfidentâ (p. 18).
In September 1946, Sandra entered Stanford as a sixteen-year-old freshman. The Stanford of 1946 was not the Stanford of today. This was long before it became one of the nationâs leading universities. Even so, Sandra was out of place. As one friend later recalled, when Sandra spoke she âsounded like the Dust Bowlâ (p. 27). Sandra fell in love with the study of Western Civilization. An âode to reason and the Enlightenment, to the rule of law, to the separation of powers, to the balance of individual liberty and democratic rule,â these values, Evan Thomas observes, âwould remain OâConnorâs guiding lights[] in later lifeâ (p. 29). Sandra became enamored with college, writing her parents that it âjust gets better and betterâ (p. 31). Eventually, she became interested in the law and, at the age of nineteen, after her junior year, she entered Stanford Law School.
At this time, only one in twenty women graduated from college and the average age of a new bride was twenty (p. 34). The standard joke was that âwomen went to college for an âMRSâ degreeâ (p. 34). During her six years at Stanford, between college and law school, Sandra Day was engaged twice, and she received four marriage proposals.
There were only four women in her entering law school class of 150. The faculty routinely referred to the students as âthe menâ or âthe boysâ (p. 35). Sandra was one of the top students in her class and one of the best students on the newly founded Stanford Law Review. The top student in the class of 1952 was William Rehnquist, who was smitten with Sandra. They were a steady couple until December 1950, when Sandra told Rehnquist she wanted to break up. Rehnquist was heartbroken. Two years later, still nursing his disappointment, Rehnquist left Stanford a semester early to begin his clerkship with Supreme Court Justice Robert Jackson. Lonely in the nationâs capital, Rehnquist wrote Sandra asking her to marry him. Sandra, though, was now in love with another student at Stanford, John OâConnor. Although Rehnquist persisted in his pursuit of Sandra, she informed him that she was seeing OâConnor. Rehnquist was brokenhearted, but he moved past his heartbreak and he and Sandra moved into âa friendship that would last the rest of their livesâ (p. 45). Six months later, Sandra and John OâConnor were married at the Lazy B.
Meanwhile, Sandra, who had graduated in the top ten percent of the class, looked for a job. Although many large firms in Los Angeles and San Francisco were actively recruiting graduates with much less impressive records than hers, none of them was interested in Sandra. Those who bothered to explain their position made clear that they were not hiring women lawyers. Finally, she accepted a position with the San Mateo County District Attorney, who offered Sandra a job at no pay, working in the outer office alongside his secretary.
Shortly thereafter, during the Korean War, John obtained a commission in the Judge Advocate Generalâs Corps in Frankfurt, Germany. Sandra got a legal job there with the Quartermasterâs Corps. In 1957, they returned to the United States, settling in Phoenix, where Bill Rehnquist was practicing. John took a job in a law firm, but Sandra could not find a position. None of the firms there would employ a woman lawyer. Six months later, after giving birth to a son, Sandra and another young lawyer opened a law office in a shopping center from which she handled whatever matters came her way. Over the next seven years, she had two more children and was active in civic affairs. But as late as 1964, Phoenix law firms remained closed to women lawyers.
Sandra and John were Eisenhower Republicans. They saw themselves âas voices of reason and moderationâ (p. 60). They hobnobbed with Barry Goldwater and with other Republican leaders in Arizona, including Bill Rehnquist and his wife. Sandra became president of the Junior League and in 1965 she was appointed State Assistant Attorney General, a title that âwas grander than her dutiesâ (p. 68). Then, in 1969, she was appointed by the Republican-controlled Maricopa County Board of Supervisors to fill a vacancy in the Arizona legislature.
As Evan Thomas reports, when OâConnor arrived at the Arizona legislature âshe might as well have crashed a fraternity house on Saturday nightâ (p. 72). Liquor was everywhere, and â[s]exual harassment was the order of the dayâ (p. 73). âBut,â Thomas adds, âthere are no tales of leering lawmakers grabbing for Senator OâConnor,â because she was âdignified, correct, and, when it suited her, stone coldâ (p. 73). As the former Arizona Governor Bruce Babbitt recalled, you would âhave to be a real weirdo to think you could hit on herâ (p. 73). Drawing on her experience in the state attorney generalâs office, OâConnor took a lead role in âboosting efficiency and stamping out cronyismâ (p. 74). For all of her âapparent primness,â she knew how to get things done (p. 75).
One of the beneficiaries of her effectiveness was her former beau, Bill Rehnquist. In October 1971, President Richard Nixon nominated Rehnquist, who by then had been working for several years in the Department of Justice, to succeed Justice John Marshall Harlan on the Supreme Court. During his confirmation hearings, Rehnquist stayed in almost daily contact with OâConnor, as she worked behind the scenes to help rebut (apparently unfounded) charges that when in Arizona he âhad harassed black and Hispanic voters at a polling placeâ (p. 77). After his nomination was confirmed, Justice Rehnquist wrote OâConnor saying that â[w]ords are inadequate to convey my appreciation for what you have done for meâ (p. 77).
As a member of the Arizona Senate, OâConnor grappled with issues involving women. Soon after arriving, she led the successful fight to repeal a 1913 law limiting women to an eight-hour workday. In 1972, the Equal Rights Amendment (ERA) passed the United States Congress and was sent to the states for ratification. The next day, Senator OâConnor rose on the floor of the state legislature to urge her colleagues to vote âyesâ on the ERA. But the bill languished in committee and supporters of the ERA began to suspect that OâConnor was âplaying gamesâ with them (p. 80). There was some truth to this concern. OâConnor was ambitious, and her powerful friend Senator Barry Goldwater had made clear to her that he did not like âtampering with the Constitutionâ or attempting to alter âthe design of the Lord by making men and women identicalâ (p. 81). OâConnor therefore hesitated, arguing that there were other ways to achieve equality for women. According to Thomas, OâConnor thought the nation could get to womenâs equality in a less controversial manner with âa few well-chosen cases brought before the federal courtsâ (p. 81).
Because OâConnor knew how to âpick[] her fights carefully,â she gained support among the stateâs conservatives, and in November 1972 the Republican caucus elected her the new Senate majority leader, making her the âfirst female leader of any state legislative upper houseâ in the nation (p. 72). Her talent, persistence, connections, and strategic politics had paid off. Despite her waffling on the ERA, as majority leader she ânever lost sight of trying to reform state laws that discriminated against womenâ (p. 94). In the end, though, OâConnor decided she wasnât cut out to be a legislator. She soon tired of the arm twisting and the horse trading, and she then announced that she would not run for reelection to the Senate. According to her legislative aide at the time, OâConnor âwanted to be a judgeâ (p. 97).
In 1974, OâConnor was elected a Superior Court judge for Maricopa County. Her early ratings as a judge were dismal. Lawyers consistently criticized her for being too tough on them. They were used to getting away with sloppiness. Judge OâConnor had no patience for such behavior. As Thomas observes, âshe was not afraid to assert herself to both humanize the law and make it more justâ (p. 106). Over time, OâConnor gained respect, and in 1979 she was elevated to become a judge on the Arizona Court of Appeals, the stateâs second-highest court.
That same year, OâConnor met and charmed Chief Justice Warren Burger, who had come to Arizona for a judicial conference. On the flight back to Washington, Burgerâs Chief of Staff wondered whether OâConnor, although only a mid-level state court judge, âmight make a Supreme Court Justiceâ (pp. 116â17). Republican women judges were rare in those days, and Chief Justice Burger decided to take steps to make her âbetter knownâ nationally by appointing her to the Judicial Fellows Committee (p. 117). The following year, concerned that women favored Jimmy Carter over him in the 1980 campaign, Ronald Reagan surprisingly announced that he would name a woman to âone of the first Supreme Court vacancies of [his] administrationâ (p. 120).3×3. The author quotes Lou Cannon, Reagan Pledges He Would Name a Woman to the Supreme Court, Wash. Post (Oct. 15, 1980), https://www.washingtonpost.com/archive/politics/1980/10/15/reagan-pledges-he-would-name-a-woman-to-the-supreme-court/844817dc-27aa-4f5d-8e4f-0ab3a5e76865 [https://perma.cc/AC2B-4RF5].
When it became known in 1982 that Justice Potter Stewart planned to step down, the âYoung Turksâ in President Reaganâs Justice Department wanted Reagan to appoint Solicitor General Robert Bork to the Court. But the President disappointed them. He wanted to appoint the first woman Justice. As Attorney General William French Smith began to put together a list of possibilities, Judge OâConnor, on the Arizona intermediate court, was not a likely prospect. But she had a critical advocate â Justice William Rehnquist âcame on strongâ for her candidacy (p. 123).
Justice Rehnquistâs endorsement carried great weight, but OâConnor still had to pass one critical test. When two members of the search team arrived at her home to interview her, they focused on the issue of abortion. OâConnor told them that she considered abortion âpersonally abhorrentâ (p. 127). She was asked how she felt about overruling precedents âif she felt they were wrongâ (p. 127). Responding carefully, OâConnor âfinessed the question,â stating that âin a limited number of cases, it would be appropriate for the Court to reverse old decisions,â but that âthis power should be used sparinglyâ (p. 128).
Apparently, this satisfied her interrogators â one of whom was Kenneth Starr â and soon thereafter she was secretly brought to the White House to meet the President. A week after their friendly forty-minute conversation in the Oval Office, President Reagan offered her the position. Although OâConnor later said that she wasnât happy to leave Arizona, and âwasnât sure she could do the job,â she nonetheless said âyesâ (p. 132). According to Evan Thomas, once her nomination was announced, â[a]ll over the country, women and young girlsâ suddenly began âimagining a future once closed to themâ (p. 134).
When OâConnorâs nomination was announced, her right-wing opponents in the Arizona legislature came out against her, and the National Right to Life Committee and the Moral Majority falsely claimed that as a state senator she had voted âsix times for unlimited abortionâ (p. 135). Senator Jesse Helms and Moral Majority leader Jerry Falwell vehemently opposed OâConnorâs nomination, and Right to Life protesters chanted âVote No on O!â (p. 136). In response, OâConnorâs friend Barry Goldwater declared that â[e]very good Christian should kick Jerry Falwell in the assâ (p. 136).
OâConnorâs confirmation hearings lasted three days. She handled herself gracefully throughout the proceedings. When asked about abortion, she said that she was personally opposed to abortion, but added that âIâm over the hill. Iâm not going to be pregnant anymore, so perhaps itâs easy for meâ (p. 142). In the end, the final vote was 99â0 in favor of confirmation. Sandra Day OâConnor would be the first woman ever to serve as a Justice on the Supreme Court of the United States.
John Glover Roberts, Jr., was born in 1955, when Sandra Day and John OâConnor were working in Frankfurt, Germany. The son of a steel company executive living in Long Beach, Indiana, an âoverwhelmingly Roman Catholicâ town in âone of the most segregated areas of the nation,â young John was ambitious (p. 24). He was determined not to follow the pattern of his classmates at his Catholic grammar school and attend a pedestrian local high school. Rather, he wanted to enroll in the La Lumiere School, a new private school created by âwealthy businessmenâ in the area who sought to establish âan academy in the tradition of the elite boarding schools of the East Coast but with a lay Roman Catholic characterâ (p. 13). As Biskupic observes, at the age of thirteen Roberts âalready had a clear plan for his lifeâ (p. 13). As he wrote in his application for admission to the La Lumiere School, he wanted âto stay ahead of the crowdâ (p. 13).4×4. Biskupic quotes Letter from John Roberts to James Moore, Headmaster, La Lumiere School (Dec. 22, 1968) (on file with the La Lumiere School).
La Lumiere required student attendance at daily chapel services and Sunday Mass. The curriculum was ârigorous,â and most of the all-male students came from wealthy families (p. 25). Students were required to wear a jacket and tie. Roberts took the culture of the school seriously. As a junior, he authored an editorial in the school paper defending the male-only admissions policy, arguing that âthe presence of the opposite sex in the classroom will be confining rather than catholicizing,â and objecting to the prospect of class discussions of âShakespeareâs double entendreâ with âa Blonde giggling and blushing behind meâ (p. 26).5×5. Biskupic quotes Roberts Started on Path to Success at Young Age, Wash. Times (Aug. 16, 2005), https://www.washingtontimes.com/news/2005/aug/16/20050816-122951-1663r [https://perma.cc/SS2H-WUEE].
When John graduated from La Lumiere in 1973, he was first in his class of approximately twenty students (pp. 25, 29). Although he grew up in the era of the Civil Rights Movement and at a time when social injustice was increasingly a part of public consciousness, he led a privileged life and was largely indifferent to, or at least unaware of, that reality.
When he arrived at Harvard College in 1973 he âexperienced a kind of culture shockâ as he encountered âthe liberalism dominant in his new surroundingsâ (p. 35). Unlike most of his classmates, âRoberts attended Catholic Mass every Sundayâ (p. 36) and âdressed the part of the prep school student that he wasâ (p. 35). One student later recalled that in the era of Watergate most students at Harvard âmockedâ their conservative classmates âas jokers or losersâ (p. 37).6×6. Biskupic quotes Janny Scott, Robertsâs Harvard Roots: A Movement Was Stirring, N.Y. Times (Aug. 21, 2005), https://www.nytimes.com/2005/08/21/politics/politicsspecial1/robertss-harvard-roots-a-movement-was-stirring.html [https://perma.cc/8W53-S4GS]. Focusing on his coursework, Roberts graduated summa cum laude in 1976, after only three years of college, having majored in history (p. 44). He then headed to Harvard Law School. Once again, he excelled, serving as managing editor of the Harvard Law Review and graduating magna cum laude (p. 45).
In the same year that Sandra Day OâConnor was appointed a judge on the Arizona Court of Appeals, Roberts served as a law clerk to United States Court of Appeals Judge Henry Friendly, one of the most respected jurists of the twentieth century. Early in his time with Judge Friendly, Roberts received word via telegram that Justice William Rehnquist had chosen him for a Supreme Court clerkship for the Courtâs 1980â81 Term.
Justice Rehnquist had âturned out to be exactlyâ what President Nixon wanted when he appointed him to the Court in 1972: âa staunch defender of law enforcement and a consistent opponentâ of affirmative action (p. 55). Indeed, just a few months before Roberts began his clerkship with him, Justice Rehnquist authored a blistering dissent in United Steelworkers of America v. Weber,7×7. 443 U.S. 193 (1979). in which the Court held that voluntary affirmative action programs by employers did not violate the 1964 Civil Rights Act.8×8. Id. at 208. As Biskupic notes, Justice Rehnquistâs dissent âwas the kind of opinion that attracted young conservatives like Roberts for its hard stand against any measures that could be deemed [racial] quotasâ (p. 55). During Robertsâs clerkship with him, Justice Rehnquist wrote one of the most important opinions of the Term (p. 59). In Rostker v. Goldberg,9×9. 453 U.S. 57 (1981). the Court held that Congress could constitutionally exclude women from the draft because they were not âsimilarly situatedâ with men when it came to combat.10×10. Id. at 78; see id. at 83. One can only imagine Arizona Court of Appeals Judge Sandra Day OâConnorâs disappointment.
When John Roberts heard Ronald Reaganâs Inaugural Address during his year as Justice Rehnquistâs law clerk, he âknew precisely what his next move would beâ (p. 61). Roberts had been âcaptivatedâ by President Reaganâs commitment to religion and his belief that âto solve the problems of modern life . . . America needed to trust again in the Bibleâ (p. 63). This resonated with Roberts, as did President Reaganâs advocacy of a ââcolor-blindâ approachâ to racial issues (p. 63). Roberts later said, âI felt he was speaking directly to meâ (p. 64). Roberts âwanted to be part of what came nextâ (p. 64).
President Reagan appointed William French Smith as his Attorney General, and Smith selected Ken Starr to be his chief of staff. Not long into the job, Starr received a call from Justice Rehnquist urging him to bring Roberts, then his law clerk, into the Justice Department. Because a recommendation from Justice Rehnquist âcarried considerable weightâ in the Reagan Administration, Roberts was appointed special assistant to Attorney General Smith (p. 64). This appointment gave the twenty-six-year-old Roberts âa chance to weigh in on the most important social dilemmas of the day,â as well as âa key connection to the legal network in Washingtonâ (p. 65).
Roberts arrived at his new position in the Department of Justice in time to help prepare Sandra Day OâConnor for her confirmation hearings. Starr directed Roberts to focus specifically on helping OâConnor âhandle questions about abortionâ (p. 66). With Robertsâs assistance, OâConnor âparried the senatorsâ questions masterfully and drew overwhelming support on Capitol Hillâ (p. 67). Roberts then pivoted to other controversies that roiled the Administration, including the enforcement of the Voting Rights Act of 1965,11×11. Pub. L. No. 89-110, 79 Stat. 437 (1965) (codified as amended in scattered sections of 42 U.S.C.). religious issues such as school prayer, and womenâs equality and abortion rights. As Biskupic describes the moment, in this environment âthe seemingly mild-mannered Roberts suddenly turned combativeâ (p. 67).
For the first time since high school, Roberts found himself surrounded by conservatives who shared his views. It was in this setting that Roberts âsolidified his view that remedies tied to an individualâs race were as repellant as racial discriminationâ (p. 68). Roberts was convinced that the Voting Rights Act of 1965 âexcessively interfered with activities that the states should be able to regulateâ (p. 70), and he aggressively urged Attorney General Smith âto be forceful about limits on the actâ (p. 72). On these and other issues he established himself within the Reagan Administration as a powerful advocate for strongly conservative positions. As a result, in late 1982, White House Counsel Fred Fielding asked Roberts to join the White House Counselâs office (p. 81).
In this new position, Roberts revealed his âsarcastic bentâ when three women members of Congress proposed âlegislation that would have allowed equal pay for comparable work based on factors such as skills and responsibilityâ (pp. 84â85). In a letter to Fielding, Roberts dismissed the proposal as absurd, declaring that its underlying logic âmay as well be, âFrom each according to his ability, to each according to her genderââ (p. 85).12×12. Biskupic quotes Letter from John Roberts to Fred Fielding, White House Counsel (Nov. 18, 1984) (on file with the Ronald Reagan Presidential Library).
Fielding returned to private practice in 1986 and Roberts, after devoting five years to the Reagan Administration that âclarified his ideological views,â decided to follow suit (p. 87). Joining the D.C. firm of Hogan & Hartson, Roberts began building a lucrative appellate practice (p. 92). Three years later, though, after President George H.W. Bush enticed Ken Starr to become his Solicitor General, Starr hired Roberts as his top deputy (p. 95).
As Deputy Solicitor General, Roberts turned his attention to many of the same issues that had engaged him during the Reagan Administration. In particular, he returned to developing arguments âagainst government policies that gave a boost to blacks, Hispanics, and other minoritiesâ (p. 97). In Metro Broadcasting, Inc. v. FCC,13×13. 497 U.S. 547 (1990). for example, he argued that FCC policies intended âto increase the minority ownership of broadcast licensesâ were unconstitutional (p. 97). The Court, in a 5â4 decision, rejected Robertsâs argument, concluding that such policies were permissible because ââpast inequities stemming from racial and ethnic discrimination [had] resulted in a severe underrepresentation of minoritiesâ in the mediaâ (p. 100).14×14. Biskupic quotes id. at 566.
Roberts also took a leading role in arguing that âRoe v. Wade15×15. 410 U.S. 113 (1973). had been wrongly decided and should be overturnedâ (p. 103). In his brief for the United States in Rust v. Sullivan,16×16. 500 U.S. 173 (1991). for example, Roberts wrote that â[t]he Courtâs conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitutionâ (p. 104).
In no small part because he âhad proven himself a committed soldier in some of the toughest, most polarizing litigation battles of the timeâ (p. 110), on January 27, 1992, the day that Roberts celebrated his thirty-seventh birthday, President George H.W. Bush nominated him to serve on the United States Court of Appeals for the D.C. Circuit to replace Judge Clarence Thomas, who had just been appointed to the Supreme Court. Senate Judiciary Committee Democrats were wary of Roberts, though, and they delayed the confirmation process (p. 111). Robertsâs nomination lapsed after the election of Bill Clinton in November 1992.
Thereafter, Roberts returned to his appellate practice at Hogan & Hartson. Over the next eight years, he appeared frequently before the Supreme Court representing corporate clients. He earned a reputation as a superb appellate advocate. Indeed, Justice Sandra Day OâConnor later observed that âno one presented better arguments on a more consistent basisâ than John Roberts (p. 112).
On a more personal level, in 1996, at the age of forty-one, Roberts married Jane Sullivan, a Catholic lawyer in Washington, D.C. Like Roberts, Sullivan âwas socially conservativeâ (p. 115). She was a âstrong opponent of abortion rightsâ and a member of the Board of Feminists for Life (p. 115). Four years later, after they realized they could not conceive a child, they adopted two children (pp. 121â22).
Then came the 2000 presidential election. As the nation awaited the outcome, Roberts flew to Florida to help prepare George W. Bushâs side of the case that eventually became Bush v. Gore.17×17. 531 U.S. 98 (2000) (per curiam). In a bitterly contested 5â4 decision, the Supreme Court effectively awarded the presidency to Bush.18×18. Id. at 111. Justice Sandra Day OâConnor was the deciding vote when she joined the majority opinion.
Like â[o]ther lawyers who had come up through GOP administrations and worked on Bush v. Gore,â Roberts was ârewardedâ with a plum job â he was renominated for a position on the United States Court of Appeals for the D.C. Circuit (p. 129). In order to avoid a repeat of his first nomination, Roberts distanced himself from the Federalist Society and made clear that he âdid not want to be viewed as a member of the hard rightâ (p. 131). Robertsâs strategy was successful. The Senate Judiciary Committee approved his nomination by a vote of 16â3 and the full Senate confirmed his nomination on May 8, 2003, by a voice vote.
Roberts already had his eye on the Supreme Court, though, and in the approximately fifty opinions he wrote on the Court of Appeals over the next two years he went out of his way to avoid controversy. As Biskupic notes, â[h]aving advised judicial candidates, dating to the 1981 appointment of Sandra Day OâConnor, Roberts knew better than most aspirants for promotion to the high court that his judicial opinions could and would be used against himâ (pp. 137â38).
Just weeks before the 2004 presidential election, in which George W. Bush defeated John Kerry, âChief Justice Rehnquist, who was eighty years old, revealed that he had thyroid cancerâ (p. 138). Chief Justice Rehnquistâs âwarmest relationshipâ on the Court âwas with his old Stanford classmate OâConnorâ (p. 138). In their years together on the Court â[t]hey shared dinners together, played charades, and vacationed together with their familiesâ (p. 139). Chief Justice Rehnquistâs departure from the Court, either by death or retirement, seemed imminent.
As the months went by, Attorney General Alberto Gonzales interviewed a succession of candidates, including Roberts, for the Supreme Court. The administration was looking not only for a possible successor to Chief Justice Rehnquist, but also for other nominees should one or more of the older Justices â like Stevens, OâConnor, and Ginsburg â step down. As Gonzales later observed, among the considerations that were central to the search was whether the nominee âwould deliver the consistent conservative votes Bush soughtâ (p. 142). The ârallying cryâ of hard-right Republicans was: âNo more Soutersâ (p. 143). Having impressed Gonzales, Roberts then went through a series of meetings with such figures as Vice President Dick Cheney, White House Counsel Harriet Miers, and Leonard Leo of the Federalist Society (p. 146).
While all this was going on, Justice Sandra Day OâConnor was dealing âwith the deteriorating health of her husband, John, who had Alzheimerâsâ (p. 147). When the Supreme Court Term ended on June 27, 2005, reporters and government officials waited for news of Chief Justice Rehnquistâs retirement. OâConnor âwent to her old friend and asked about his plansâ (p. 148). Chief Justice Rehnquist said he thought he could make it through another Term. Justice OâConnor âseized the momentâ and, feeling the need to take care of her husband, sent a letter to President Bush informing him of her decision to step down (p. 149). When Harriet Miers called Gonzales to inform him of the situation, she said: âWe have a retirement. . . . Itâs not who we expectedâ (p. 149).
After reviewing a list of possible successors to OâConnor, which included Court of Appeals Judges Michael Luttig, J. Harvie Wilkinson, Samuel Alito, Priscilla Owen, Edith Brown Clement, and John Roberts, President Bush, who described Roberts as âa genuine man with a gentle soul,â leaned towards Roberts (p. 155). His senior advisors were divided, though. President Bush then turned to younger lawyers in the White House Counselâs office for advice. In a critical conversation, Brett Kavanaugh, whom President Bush had nominated to the D.C. Circuit Court of Appeals, suggested to President Bush that the best nominee would be the one âmost capable of convincing his colleagues through persuasion and strategic thinkingâ (p. 156). As Biskupic describes the moment, â[t]hat way of looking at it sealed Bushâs choice of Robertsâ (p. 156). On July 19, 2005, President George W. Bush announced that his nominee to replace Justice Sandra Day OâConnor was Judge John Roberts.
But it was not so simple. On September 3, before Roberts was confirmed, President Bush received a phone call informing him that Chief Justice William Rehnquist had died. The next morning, President Bush informed his advisers that he had decided to make John Roberts his nominee for Chief Justice. Three days later, Roberts joined seven other pallbearers to carry Chief Justice Rehnquistâs flag-draped casket into the Supreme Court building. Sandra Day OâConnorâs âface was streaked with tearsâ (p. 160). The next day at the funeral, she âtook the lead in the tributes to her former classmateâ and lifelong friend (p. 160).
Five days later, âRoberts appeared before the Senate Judiciary Committee for four days of testimonyâ (p. 161). Roberts âunderstood the value of a pitch, a sloganâ (p. 161). In a memorable moment in his hearings, he analogized judges to umpires. It is their job, he said, not to make the rules, but to call balls and strikes. Roberts described himself as a âmodest judgeâ who was committed to the principle of stare decisis (p. 161). He indicated to legislators that âhe believed that the right to abortion was a settled precedentâ (p. 164). Robertsâs critics in the hearings came mostly from the civil rights community. When thenâSenator Barack Obama cast his vote against Roberts, for example, he explained that, â[i]n his work in the White House and the Solicitor Generalâs Office, [Roberts] seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political processâ (p. 167). Roberts defended himself by maintaining that he had only been doing the bidding of his superiors. In the end, the Senate voted 78â22 to approve Robertsâs nomination as Chief Justice of the United States (p. 167).19×19. Misled by Roberts in his confirmation hearings, I endorsed his confirmation. See Geoffrey R. Stone, Opinion, President Bushâs Blink, Chi. Trib., July 27, 2005, at 27.
II. On the Court
When Sandra Day OâConnor arrived at the Supreme Court to be sworn in as the nationâs first female Justice in 1981, Chief Justice Warren Burger took her by the arm and walked her down the Supreme Court steps. Justice Burger exclaimed to reporters: âYouâve never seen me with a better-looking Justiceâ (p. 151). As Evan Thomas observes, OâConnor kept smiling because she had âlong since learned to ignore minor diminishmentsâ (p. 151). In recognition of her appointment, the Court removed the âMr. Justiceâ plaques on chamber doorways, but there was no âladiesâ roomâ near the Justicesâ conference room, so OâConnor âhad to borrow a bathroom in the chambers of a Justice down the hallâ (p. 154). OâConnor âfelt isolatedâ on the Court (p. 158). Even her old beau Bill Rehnquist kept his distance because âhe didnât want his personal relationship to color his professional relationshipâ (p. 159). Despite her initial challenges, though, OâConnor experienced a sense of âexultationâ as she built her relationships with her colleagues on the Court (p. 164).
By the time OâConnor arrived, Republican presidents had made six consecutive appointments to the Court. Presidents Nixon, Ford, and Reagan had transformed the Court as an institution. Unlike the Warren Court, which had been dedicated to protecting the enduring constitutional values of democracy and equality,20×20. See Geoffrey R. Stone & David A. Strauss, Democracy and Equality: The Enduring Constitutional Vision of the Warren Court (forthcoming 2020) (on file with author). the Burger Court over the intervening twelve years had shifted to a much more restrained and more conservative stance. Gone were the days when the Warren Court decided such cases as Brown v. Board of Education,21×21. 347 U.S. 483 (1954). Mapp v. Ohio,22×22. 367 U.S. 643 (1961). Engel v. Vitale,23×23. 370 U.S. 421 (1962). Gideon v. Wainwright,24×24. 372 U.S. 335 (1963). Reynolds v. Sims,25×25. 377 U.S. 533 (1964). New York Times v. Sullivan,26×26. 376 U.S. 254 (1964). and Miranda v. Arizona.27×27. 384 U.S. 436 (1966). With but a few exceptions, such as Roe v. Wade, the Burger Court had significantly shifted the terms of constitutional law. Indeed, by the time Justice OâConnor joined the Court, only Justices William J. Brennan, Jr., Byron White, and Thurgood Marshall remained from the days of the Warren Court.
In March of her first year on the Court, Justice OâConnor heard her first sex discrimination case. In Mississippi University for Women v. Hogan,28×28. 458 U.S. 718 (1982). the university refused to admit men to its all-women nursing school, which was the only nursing school in the state. At conference, the eight male Justices divided four to four on whether this policy violated the Equal Protection Clause. As the junior Justice, OâConnor was the last Justice at conference to cast her vote. She joined Justices Brennan, White, Marshall, and Stevens in holding that the policy amounted to unconstitutional discrimination on the basis of sex.
Justice Brennan, the senior Justice in the majority, assigned OâConnor to write the opinion. In her opinion for the Court, OâConnor explained that the state of Mississippi lacked the âexceedingly persuasive justificationâ necessary to uphold discrimination on the basis of sex (p. 180). Excluding men from the nursing profession, she declared, tends to âperpetuate the stereotyped view of nursing as an exclusively womanâs job.â29×29. Id. at 729. In this decision, Thomas notes, OâConnor took an important step forward âin the long fight for womenâs rightsâ (p. 181).
A year later, OâConnor confronted the issue of abortion. In the decade after the Courtâs decision in Roe v. Wade, many cities and states enacted laws designed to restrict a womanâs right to abortion. The city of Akron, Ohio, for example, had enacted rules that required âwomen to sign âconsent formsâ that included a lecture from the doctor that a fetus is âhuman life from the moment of conceptionâ and a twenty-four-hour waiting periodâ (pp. 192â93). The Reagan Administration emphatically supported such restrictions.
In City of Akron v. Akron Center for Reproductive Health, Inc.,30×30. 462 U.S. 416 (1983). six Justices voted to hold the Akron ordinance unconstitutional, but Justice Sandra Day OâConnor ââ joined by the two Justices who had dissented in Roe, Justices Rehnquist and White ââ dissented.31×31. Id. at 418. In her dissenting opinion, Justice OâConnor rejected the trimester framework adopted by the Court in Roe and, drawing on the Reagan Administrationâs brief in the case, maintained that states can constitutionally restrict abortion as long as they do not place an âundue burdenâ on a womanâs right to choose.32×32. Id. at 452â75 (OâConnor, J., dissenting). Applying that standard, OâConnor concluded that the restrictions adopted by the city of Akron were constitutional.33×33. Id. at 452.
At the end of OâConnorâs second year on the Court, she revealed to her husband John that she was learning âhow to get things doneâ (p. 195). Although she may have been âhumble about her jurisprudence,â she was not âaverse to exercising power on the Courtâ (p. 196). Moreover, OâConnor was highly social â and energetic. As Thomas notes, â[s]he did not hold back on the tennis court or golf course or at the bridge tableâ (p. 199). Indeed, â[h]er nonstop energy could wear out her friendsâ (p. 199). In her social relations she could be quite bossy, and â[s]ome friends bridled at her bossinessâ (p. 200). But they also âsaw OâConnorâs sweeter side as wellâ (p. 201). At times she could be quite âgoofyâ (p. 201). On Halloween in 1984, for example, in an effort âto loosen up the Courtâs conference,â (p. 201) she came wearing âGroucho Marx type glasses that [had] a big nose, a moustache and bushy eyebrowsâ (p. 202). Although a bit stunned, the other Justices âhad a big laughâ (p. 202).
In 1985, the Court confronted a difficult issue involving the First Amendmentâs religion clauses. One of the Warren Courtâs âmost unpopularâ decisions was Engel v. Vitale, in which the Court held in 1962 that state-sponsored school prayer violates the Establishment Clause (p. 212). Thereafter, many states and cities attempted to circumvent Engel by enacting laws permitting âa moment of silenceâ during which schoolchildren could choose to pray (p. 213). Although Chief Justice Burger and Justices White and Rehnquist voted to uphold such a law in Wallace v. Jaffree,34×34. 472 U.S. 38 (1985). Justice OâConnor did not go along with them. Rather, she joined Justices Brennan, Marshall, Blackmun, Powell, and Stevens in striking down the moment of silence law.
In a separate concurring opinion, OâConnor âtook apartâ the challenged law to show that the legislatureâs âtrue purposeâ was âto push prayer in schoolsâ (p. 213). To Chief Justice Burger, OâConnorâs vote was âfurther proofâ of her âperfidyâ (p. 214). She was not âthe go-along, get-along Justice (and passive female) he had hoped forâ (p. 214). According to Evan Thomas, Chief Justice Burger thereafter ârewarded her independence by assigning her âsecond tierâ opinions â dealing with economic issues, like taxes and water rights, not the major constitutional disputesâ (p. 215).
The following year, OâConnor once again frustrated her more conservative brethren, this time on the issue of affirmative action in Wygant v. Jackson Board of Education.35×35. 476 U.S. 267 (1986). In 1978, in Regents of the University of California v. Bakke,36×36. 438 U.S. 265 (1978). the Court had divided sharply on the issue of affirmative action in higher education, with four Justices taking the position that any consideration of race in college admissions was effectively unconstitutional, four Justices arguing that the consideration of race to redress past discrimination in society was constitutionally permissible, and Justice Lewis Powell writing the deciding opinion that left the matter more than a little confused.37×37. Id.
In Wygant, the challenged government policy protected the jobs of black teachers at a time when the number of teachers had to be cut. The vote was 4â4 when it came time for OâConnor to cast the deciding vote. OâConnor wanted to âtemporizeâ on the issue (p. 229). As Thomas describes her position on this and other difficult issues, OâConnor believed in âthe importance of doubtâ (p. 231). Thus, in OâConnorâs view, â[s]ome societal questions do not lend themselves to black-and-white answers, partly because the American people are divided and feeling their way, or because social attitudes are evolving, sometimes slowlyâ (p. 231). In such circumstances, OâConnor embraced a âhumble approachâ (p. 231). After months of hesitation and deliberation, she found a way to invalidate the particular affirmative action program at issue in Wygant, âwhile allowing her to signal that affirmative action was still viableâ (p. 233).
In the spring of 1986, rumors began to circulate that Chief Justice Burger planned to retire. Justice Powell suggested to OâConnor that he supported her appointment as Chief Justice (p. 216). But she realized that, given the very conservative views of President Reaganâs Attorney General Edwin Meese, her âgoose was cookedâ (p. 217). After Chief Justice Burger formally announced his intention to retire at the end of the term, President Reagan appointed William Rehnquist the new Chief Justice. OâConnor noted in her private journal that she was âdelighted with the selectionâ and that she had âno doubtâ that his jurisprudence was âmore to Ed Meeseâs liking than mineâ (p. 219). She added that â[i]t will be hard to call Bill âChiefââ (p. 219).
President Reagan then nominated then-Judge Antonin Scalia to the Court to fill Justice Rehnquistâs seat as an Associate Justice. According to Evan Thomas, it did not take Justice OâConnor long âto realize that a full dose of Scalia could be a little too bracingâ (p. 236). Although Justice OâConnor welcomed Justice Scaliaâs fresh ideas and intellectual energy, she soon learned that he scoffed behind her back that she âwas a politician not a judge,â and that âshe was not a rigorous legal thinker but rather felt her way to crowd-pleasing outcomesâ (p. 237).
At the end of the following term, Justice Powell announced that he was retiring. Justice Powell had been Justice OâConnorâs âbest friend on the Court,â and she observed that, âfor her, Lewisâs announcement was like learning her best friend had just diedâ (p. 233). Four days later, President Reagan nominated Judge Robert Bork to replace Justice Powell. After the defeat of Borkâs nomination because his views were deemed to be out of the mainstream of legal thought, and the withdrawal of President Reaganâs replacement nomination of Judge Douglas Ginsburg because he had smoked marijuana with his students at Harvard, President Reagan successfully nominated then-Judge Anthony Kennedy to replace Justice Powell. Kennedy was generally regarded as much more conservative than Justice Powell, but he was not seen as an extreme conservative like Bork.
Then, in the fall of 1988, at the age of fifty-eight, Justice OâConnor was diagnosed with breast cancer (p. 242). After chemotherapy and surgery, she courageously returned to the Court only ten days later (p. 250). Meanwhile, as the Courtâs three remaining âliberalsâ â Justices Brennan, Marshall, and Blackmun â aged, it became apparent that they would soon have to step down. Justice Brennan âwas the first of the old liberals to goâ (p. 271). The âgreat cocreator and preserver of the Warren Court resigned a few daysâ after suffering a stroke in the summer of 1990 (p. 271).
President George H.W. Bush then nominated Court of Appeals Judge David Souter to replace him, and Souter âsailed through his hearing with a modest, wellspoken charmâ (p. 271). Justice Souter was unmarried and lived alone in an old New Hampshire farmhouse. Justice OâConnor and Barbara Bush decided that he âshould be marriedâ (p. 272). Justice Souter then went on a date or two âarranged by Justice OâConnor,â but they came to naught (p. 272). After one date, for example, âhe thanked the woman and said, âThat was fun. Letâs do it again next yearââ (p. 272).
Justice Thurgood Marshall was the next of the âold liberalsâ to go. He retired from the Court a year later, in October 1991. President George H.W. Bush then nominated Court of Appeals Judge Clarence Thomas, another African American, to replace Justice Marshall. After surviving a brutal confirmation process, Justice Thomas joined the Court as a conservative âto the right of Scaliaâ (p. 274). Thomas âwanted to restore âthe Constitution in Exileâ by discerning the intent of the Founders and stripping away the layerings of post-New Deal activist judgesâ (p. 274). As Evan Thomas describes the situation, âThomas was the mirror opposite of OâConnorâs balancing act moderationâ (p. 274). Over the years, she ârarely joined his opinions, even when she voted on the same side in a caseâ (p. 274).
With the confirmation of Justice Clarence Thomas, Republican presidents had appointed ten consecutive Justices to the Supreme Court over the preceding twenty-two years. The only Justice remaining from the Warren Court was the relatively conservative Justice Byron White, and the only two Justices still on the Court who had participated in Roe in 1973 were Justice Harry Blackmun, the author of the opinion, and Justice White, who along with Chief Justice Rehnquist was one of the two dissenters. At this point, Roe seemed doomed.
In Planned Parenthood of Southeastern Pennsylvania v. Casey,38×38. 505 U.S. 833 (1992). the newly constituted Court considered the constitutionality of a Pennsylvania law that placed numerous restrictions on a womanâs right to abortion, including a twenty-four hour waiting period, a mandatory lecture on fetal development, and a requirement that, if the woman was married, she had to notify her husband that she planned to have an abortion.
At the conference after the case was argued, Chief Justice Rehnquist, confident that he now had at least five votes to overrule Roe, assigned the opinion to himself. When he circulated his draft opinion to the other Justices in May of 1993, Justice Harry Blackmun, the author of Roe, was in despair. A few days later, though, âhe received a letter from Justice Kennedy. âDear Harry,â it began, âI need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome newsââ (p. 279).
The news was that Justices OâConnor, Kennedy, and Souter âhad been meeting secretly to save a womanâs right to abortionâ (p. 279). They had drafted an opinion which, when added to the votes of Blackmun and Stevens, âwould effectively negate Rehnquistâs effort to gut Roe v. Wadeâ (p. 279). Justice OâConnor wrote most of what came to be the critical plurality opinion in the case. Drawing on her prior opinions on abortion, she insisted that the state could not constitutionally impose an âundue burdenâ on a womanâs constitutional right to terminate an unwanted pregnancy. As Evan Thomas observes, taken in context, the âopinion is a clear defense of a womanâs liberty,â and given the makeup of the Court at the time, it was truly a stunning victory for womenâs rights (p. 281). Chief Justice Rehnquist and Justices White, Scalia, and Thomas were livid (p. 281).
Soon thereafter, President Bill Clinton appointed then-Judge Ruth Bader Ginsburg to replace the retiring Justice Byron White. Justice OâConnor was pleased, not only because there were now two women Justices, but also because âthe Court finally installed a womanâs bathroom in the robing room behind the benchâ (p. 284). But Justice OâConnor and Justice Ginsburg were ânot natural pals,â and âtheir relationship was not cozyâ (p. 284). Among other things, Justice Ginsburg was apparently a lousy driver, and she sometimes scraped Justice OâConnorâs car in the Supreme Courtâs parking lot. Justice Ginsburg explained to Evan Thomas that this happened because Justice Scalia parked on the other side of her car and she was âanxious not to scrapeâ his car (p. 285). âFender benders aside,â Justices OâConnor and Ginsburg âwere bonded by their trials as women pioneersâ (p. 285).
In 1994, President Clinton appointed Court of Appeals Judge Stephen Breyer to replace Justice Harry Blackmun, who had retired. Justices Breyer and OâConnor got along well, as they âshared a deep civic-mindedness,â although âBreyerâs center of gravity was more to the leftâ (p. 299). Throughout this time, Justice Scalia continued to annoy OâConnor. In conference, âScalia suffered from smartest-kid-in-the-class syndrome, and in private he could be rudeâ (p. 299). Moreover, they continued to take âfundamentally different approaches to judgingâ (p. 300). Justice Scaliaâs world âwas governed by absolute âthou shalt nots,ââ whereas Justice OâConnor was inclined âmore toward three-part testsâ (p. 300). Justice OâConnor worked hard, though, âto maintain civility on the Courtâ (p. 301).
Justice OâConnor and her husband John had hoped that she could retire from the Court in 1996, when she was sixty-six. âFreed from the daily grind, the OâConnors imagined a more relaxed life of travel and sports with family and friends, while they were still young enough to enjoy itâ (p. 308). But, after President Bill Clinton was re-elected, there was âno more talk of retirement,â because she âdid not want her successor to be chosen by a Democratâ (p. 308).
Justice OâConnor increasingly became the decisive fifth vote in the Courtâs decisions. During the 1999 Term, for example, the Court divided 5â4 in twenty-one of seventy-four cases, but Justice OâConnor âvoted in dissent only four times, tying the modern recordâ (p. 318). As Joan Biskupic observed in an op-ed in 2000, Justice OâConnor had become âThe Man.â39×39. Joan Biskupic, OâConnor the âGo-Toâ Justice, USA Today, July 12, 2000, at 1A. The most obvious explanation for OâConnorâs shift from being a right-leaning moderate to being the center vote was the sharp ideological shift in the Court over time with the appointments of Justices Scalia, Kennedy, and Thomas.40×40. See id.
Justice OâConnorâs centrist role became evident once again on the âever vexingâ issue of abortion (p. 317). In Stenberg v. Carhart,41×41. 530 U.S. 914 (2000). the Court considered the constitutionality of a Nebraska law prohibiting the use of so-called âpartial-birth abortionsâ (clinically referred to as âdilation and evacuationâ) in late-term pregnancies.42×42. Id. at 924. With the other Justices sharply divided 4â4, Justice OâConnor joined the more âliberalâ Justices (Justices Stevens, Souter, Ginsburg, and Breyer) in holding the law unconstitutional because it did not make an exception for use of the procedure in order to protect the life or health of the woman (p. 317).
And then came Bush v. Gore. Justice OâConnor was âa loyal Republican and a friend of the Bush familyâ (p. 322). During the campaign, she had written â[k]eep your fingers crossed for a Bush victoryâ to Arizona Governor Jane Dee Hull (p. 322). In part, this was based on politics, and in part it was based on her desire to retire, a desire made even more pressing by her husband Johnâs health issues relating to possible Alzheimerâs.
With John Roberts now working as a lawyer for the Bush camp, the case made its way to the Supreme Court. The night before the case was argued, Justice John Paul Stevens, who had been appointed to the Court by President Gerald Ford, noted that this should âtake us about ten minutes,â because Bushâs position had âobviously no meritâ (p. 327).43×43. The author quotes John Paul Stevens, Five Chiefs: A Supreme Court Memoir 198â99 (2011). But he was in for âa rude surpriseâ (p. 327). Chief Justice Rehnquist and Justices Scalia, Thomas, Kennedy, and OâConnor voted to stop the recount, thus ensuring Bushâs election. As Evan Thomas notes, Justice OâConnor inserted âthe most banal â and telling â phraseâ into the majority opinion: that the Courtâs holding was âlimited to the present circumstancesâ (p. 332).44×44. The author quotes Bush v. Gore, 531 U.S. 98, 109 (2000).
Of the many consequences of this decision, one was that President George W. Bush, rather than President Al Gore, had the opportunity several years later to replace William Rehnquist as Chief Justice of the United States. It was thus Justice OâConnorâs vote in Bush v. Gore that brought John Roberts to the Supreme Court.
In later years, Justice OâConnor admitted that she âregretted Bush v. Gore,â but she added defensively that âsecond thoughts donât do you a lot of goodâ (p. 339). Ironically, in light of her vote in Bush v. Gore, Justice OâConnor now felt that, in order to protect her reputation, and despite her desire to retire, she couldnât step down from the Court âanytime soon,â or it would look as if she had cast the deciding vote in order to ensure that a Republican president would get to replace her (pp. 333â34).45×45. See Andrew Rosenthal, OâConnor Regrets Bush v. Gore, N.Y. Times (Apr. 29, 2013, 2:36 PM), https://takingnote.blogs.nytimes.com/2013/04/29/oconnor-regrets-bush-v-gore/ [https://perma.cc/Q5UR-N64F].
In 2003, the Court had an opportunity to revisit the issue of affirmative action. Two different University of Michigan programs came before the Court (p. 348). The undergraduate admissions program awarded points for each applicantâs grades, class rank, SAT scores, extracurricular leadership, and legacy status. Any applicant who earned 100 points was admitted. Minority applicants were automatically given twenty additional points in order to ensure an appropriate representation of minority students. The law school admissions program was more âholisticâ (p. 348). Race was a factor, but it was simply taken into account, along with a range of other factors (p. 348).
As the cases came to the Court, Justice OâConnor knew that she was in the middle. The four more conservative Justices ââ Rehnquist, Scalia, Kennedy, and Thomas â would invalidate any form of affirmative action in state universities; the four more liberal Justices â Stevens, Souter, Ginsburg, and Breyer â would uphold any reasonable form of affirmative action. As usual, Justice OâConnor âdid not welcome her role as the decisive voteâ (p. 350).
Justice OâConnor split the difference. She joined Chief Justice Rehnquistâs opinion that invalidated the more rigid undergraduate affirmative action program,46×46. See Gratz v. Bollinger, 539 U.S. 244 (2003). but she voted with the more liberal Justices in upholding the more flexible law school program. In authoring the opinion in the law school case, Grutter v. Bollinger,47×47. 539 U.S. 306 (2003). Justice OâConnor accepted the argument that a âcritical massâ of minority students was ânecessary to ensure that minorities did not feel isolated or tokenized, and that nonminority students heard their diverse voicesâ (p. 353). With her vote in Grutter, Justice OâConnor saved affirmative action for the nation.
Over the next few years, Justice OâConnor continued to play a pivotal role in the Courtâs most important decisions. In 2003, for example, in Lawrence v. Texas,48×48. 539 U.S. 558 (2003). she voted with the majority to overrule the Courtâs 1986 5â4 decision in Bowers v. Hardwick,49×49. 478 U.S. 186 (1986). in which she had joined the majority in upholding the constitutionality of a state law that criminalized homosexual sodomy. In Lawrence, Justice OâConnor boldly took the position that such laws violate the Equal Protection Clause. (A decade later, after she had retired, Justice OâConnor presided over âone of the first marriages of a gay couple at the Supreme Courtâ â two years before the Supreme Courtâs decision in Obergefell v. Hodges50×50. 135 S. Ct. 2584 (2015). (p. 355).)
In 2003, the Court also considered the constitutionality of the McCain-Feingold Campaign Finance Reform Act of 2002,51×51. Pub. L. No. 107-155, 116 Stat. 81 (codified in scattered sections of 36 and 52 U.S.C.). which regulated âso-called âsoft-moneyâ contributions, money raised by the national political parties . . . to get around earlier campaign finance laws limiting donations to individual candidatesâ (p. 357). In McConnell v. FEC,52×52. 540 U.S. 93 (2003). Justice OâConnor, over the bitter dissents of Chief Justice Rehnquist and Justices Kennedy, Scalia, and Thomas, joined Justices Stevens, Souter, Breyer, and Ginsburg in upholding the legislation against First Amendment challenge. It was, at least for a time, a major victory in the nationâs effort to control the distorting impact of money in the political process. Once again, Justice OâConnor was the deciding vote. During this time, Justice OâConnor indicated privately her growing âdisappointment with the direction taken by the Republican Partyâ (p. 363).
Meanwhile, Justice OâConnorâs beloved husband John continued to âdecline[] day by dayâ (p. 366). By this point, Justice OâConnor was bringing John with her âto the Court every day and leaving with him at around three oâclockâ (p. 366). As time passed, â[t]he physical and emotional toll mountedâ (p. 368). As Justice OâConnor increasingly realized she had to step down in order to care for John, Chief Justice Rehnquist was also âfadingâ (p. 370). In October 2004, Rehnquist entered the hospital for thyroid cancer (p. 371). Justice OâConnor wasnât sure what to do. She wanted to give Rehnquist, her life-long friend and colleague, the right to step down first (p. 371). After he announced that he would stay for another year, Justice OâConnor made her decision (pp. 371â72, 376).
After Justice OâConnor notified her colleagues on the Court, they called to express their sympathy and disappointment (pp. 377â78). After her call with Justice Kennedy, âshe said about his conservative clerks who saw her as an impediment to Federalist Society purity, âYou could hear the corks popping in his officeââ (p. 378). After all, George W. Bush would now get to replace her. On July 19, 2005, President George W. Bush nominated then-Judge John Roberts to fill her seat. Justice OâConnor was pleased. âHeâs good in every way,â she exclaimed, âexcept heâs not a womanâ (p. 379).
Yet, as already noted, before Roberts could be confirmed Chief Justice Rehnquist died. President Bush then nominated Roberts to serve as Chief Justice and, after his nomination of Harriet Miers failed, he nominated Judge Samuel Alito to replace Justice OâConnor. The net effect on the Court going forward was dramatic, and Justice âOâConnorâs friends continued to wonder and worry if she had done the right thingâ by stepping down when she did (p. 381).
Two years later, Justice OâConnor complained to former Solicitor General Walter Dellinger that Justice Alitoâs nomination was âa betrayal of all her accomplishmentsâ (p. 388). In her view, Justice Alito âwas an inflexible believer in conservative jurisprudential doctrine, in the mold of Antonin Scaliaâ (p. 388). He would, she feared, âundermine her pragmatic compromises on abortion, affirmative action, freedom of religion,â campaign finance restrictions, âand other important issuesâ (p. 388). Moreover, to Justice OâConnorâs growing âdismay,â Chief Justice Roberts seemed even âmore intent on pushing a conservative agenda than his predecessor had beenâ (p. 389). Indeed, â[i]n a single year,â the Roberts Court upheld a ban on partial-birth abortion, âloosened the rules of campaign spending, [and] chipped away at her balancing act on affirmative actionâ (p. 389). Justice OâConnor sadly told a friend: âEverything I stood for is being undoneâ (p. 389).
Meanwhile, Justice OâConnor had to figure out what to do with herself. She was bored. âStepping down from the Court was âthe dumbest thing I ever did,ââ she confessed to a friend (p. 387). She then came to the view that schools had been teaching outdated civics education and that she should help âeducate the next generationâ (p. 392). In 2009, she formed a new nonprofit organization to develop free video games to teach civics to middle schoolers. By 2017, âhalf of all middle schoolers in the United States â about five million studentsâ â were using the games her organization had developed to teach students civics (p. 393). OâConnor âwas thrilledâ (p. 393).
John, though, continued to deteriorate. In 2009, her beloved husband passed away after a tragic and devastating bout with Alzheimerâs. He had stopped recognizing her many years before. It âwas tragic,â she said, that âhe had to end his life this wayâ (p. 395). Justice OâConnor kept busy, though, traveling across the country and around the world, âa salesperson for civic virtueâ and âa living memorial to womenâs progressâ (p. 397). Now, almost ninety years of age, Justice Sandra Day OâConnor, still âundaunted,â remains âaware of her place in historyâ (pp. 404â05).
One of the first challenges Chief Justice Roberts faced upon arriving at the Court was managing his relationships with the other Justices (p. 172). Chief Justice Roberts was only fifty years of age and had only two years of experience as a lower court judge. As Joan Biskupic reveals, âpersonal conflictsâ soon arose (p. 172). Within six months, for example, Chief Justice Roberts crossed swords with the generally easy-going Justice Souter in a Fourth Amendment case in which Souter, writing for the majority, accused Chief Justice Roberts of attempting to undermine âcenturies of special protection for the privacy of the homeâ (p. 172).53×53. The author quotes Georgia v. Randolph, 547 U.S. 103, 115 n.4 (2006).
The addition of Justice Samuel Alito to the Court to replace Justice OâConnor did not help things because, in Biskupicâs words, Justice Alito, unlike Justice OâConnor, was âa rigid conservativeâ who became ever more so âthe longer he servedâ (p. 175). This left the Court even more rigidly divided than before, with Chief Justice Roberts and Justices Scalia, Thomas, and Alito on the right, Justices Stevens, Souter, Ginsburg, and Breyer on the left, and the generally conservative, although sometimes âunpredictable,â Justice Kennedy in the center (p. 175). Faced with this challenge, Chief Justice Roberts hoped to work towards consensus in order to âfoster a more stable impression of the Court and the lawâ (p. 176). From the very beginning, though, as Biskupic demonstrates, Chief Justice Robertsâs own views often âsuperseded his desire for consensusâ (p. 177).
In 2007, for example, in Gonzales v. Carhart,54×54. 550 U.S. 124 (2007). the Court, in a 5â4 decision, effectively overruled the Courtâs 2000 decision in Stenberg v. Carhart, in which Justice OâConnor had been the decisive vote. In Stenberg, the Court had invalidated a law forbidding âpartial-birth abortionâ because it did not contain an exception that would permit the procedure to be used to protect the health or life of the woman.55×55. Stenberg v. Carhart, 530 U.S. 914, 938 (2000). In Gonzales, the Roberts Court, without Justice OâConnor in the middle, upheld a federal law absolutely prohibiting partial-birth abortion, even though the American College of Obstetricians and Gynecologists had made clear that âin some cases it was the best procedure for a pregnant woman in the second trimesterâ (p. 181). In her dissenting opinion, Justice Ruth Bader Ginsburg, joined by Justices Stevens, Souter, and Breyer, declared the majorityâs opinion âalarmingâ (p. 182).56×56. The author quotes Gonzales, 550 U.S. at 170 (Ginsburg, J., dissenting).
As divisive as Gonzales was among the Justices, even more divisive were the Roberts Courtâs 5â4 decisions later that Term dealing with issues of race. As Biskupic describes the situation, these âcases concerned the efforts of school districts in Seattle and Louisville to counteract the return of school segregation, a phenomenon that was the result of national housing trends and diminished judicial and federal involvement in desegregation effortsâ (pp. 182â83). Indeed, she notes, â[b]y the early 2000s, a substantial segment of the black student population throughout the country was again attending schools that were nearly 100 percent blackâ (p. 183). To address this situation, school officials in Seattle and Louisville had begun assigning students to schools in an effort to promote integration (p. 183).
Although the courts of appeals had upheld these programs as consistent with the Equal Protection Clause because they served the governmentâs compelling interest in achieving racial and ethnic diversity in education (p. 183), the Roberts Court, again divided 5â4, held these programs unconstitutional. Because he clearly believed that Justice OâConnorâs position in Grutter v. Bollinger was âmisguided,â Chief Justice Roberts âwrote a sweeping opinionâ in Parents Involved in Community Schools v. Seattle School District No. 157×57. 551 U.S. 701 (2007). asserting that the Courtâs landmark 1954 decision in Brown v. Board of Education âforbade all practices that took account of race, including those that would increase integrationâ (p. 184). Chief Justice Roberts concluded his opinion âwith a line that reflected his bedrock beliefs: âThe way to stop discrimination on the basis of race is to stop discriminating on the basis of raceââ (p. 187).58×58. The author quotes id. at 748. Voting with him, once again, were Justices Kennedy, Scalia, Thomas, and Alito (p. 186). Justice Kennedy, though, wrote a more moderate concurring opinion that left room for such policies if âracial classifications were the only way to achieveâ the compelling interest in diversity (p. 186).
As Biskupic notes, despite Chief Justice Robertsâs professed desire for consensus, this was an issue on âwhich Roberts would not yieldâ (p. 187). He was not willing to write a more measured opinion, along the lines suggested by Justice Kennedy, that would have achieved a majority and would have left the other, more divisive questions for the future. The dissenting Justices, and Justice Kennedy, were âstartled by Robertsâs rationaleâ (p. 188). Justice John Paul Stevens called Chief Justice Robertsâs approach âcruelâ and, referring to Brown, charged that âthe Chief Justice rewrites the history of one of this Courtâs most important decisionsâ (p. 188).59×59. The author quotes id. at 799 (Stevens, J., dissenting). After the Court handed down its decision in Parents Involved, Democratic Senator Patrick Leahy announced that he âregretted voting in favor of Roberts during his 2005 confirmation,â and other critics maintained that Chief Justice Roberts was effectively âasking the country to pretend that the historyâ of racism and racial discrimination had ânever happenedâ (p. 191).60×60. The author quotes Linda Greenhouse, A Tale of Two Justices, 11 Green Bag 2d 37, 39 (2007). According to Biskupic, though, Chief Justice Roberts was of the view that âthe country had moved past its history of racial strifeâ (p. 191).
In November 2008, the nation elected its first African American President, Barack Obama. As a United States senator, Obama had voted against Chief Justice Robertsâs confirmation (p. 199). In the spring of 2009, Justice Souter announced that he would soon retire. According to Biskupic, one reason for his decision was âhis frustration . . . with the Courtâs increasing conservatismâ (p. 200). Indeed, although Justice Souter had been appointed by Republican President George H.W. Bush, and considered stepping down earlier, he âdecided to wait until a Democratic president . . . could appoint his successorâ (p. 200). President Obama appointed Court of Appeals Judge Sonia Sotomayor to replace Souter. The third woman and first Latina to be appointed to the Supreme Court, then-Judge Sotomayor âhad grown up in a housing project in the Bronxâ (p. 201). The Senate confirmed her nomination by a vote of 68â31 in August of 2009 (p. 203).
The next major issue to confront the Court involved campaign finance regulation. In 1990, in Austin v. Michigan State Chamber of Commerce,61×61. 494 U.S. 652 (1990). the Court had held, in a 6â3 decision, that Michigan could constitutionally prohibit corporations from using their general treasury funds for independent expenditures to support or oppose a candidate for public office (p. 205). Then, in 2003, as noted earlier, the Court in McConnell v. Federal Election Commission, with Justice OâConnor in the majority, upheld the constitutionality of the McCain-Feingold Campaign Reform Act of 2002 (pp. 206â07). During his confirmation hearings, John Roberts had âassured senators of his commitmentâ to the doctrine of precedent (p. 207). The campaign finance issue would once again test this commitment.
In 2010, in the case of Citizens United v. FEC,62×62. 558 U.S. 310 (2010). the conservative majority overturned both Austin and most of McConnell. In Citizens United, Roberts âhelped to lead a revolution that cleared the way for unlimited spending on political campaignsâ (p. 211). The five-Justice majority of Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito eviscerated any meaningful regulation of campaign spending in the United States. In their view, because spending money to elect the candidate of oneâs choice was âspeechâ within the meaning of the First Amendment, it could not be regulated or restricted unless necessary to serve a compelling government interest.63×63. Id. at 340. The five conservative Justices held that neither limiting the capacity of corporations or billionaires to dominate our democracy, nor preventing corruption or its appearance, nor protecting shareholders who do not wish to fund corporate political speech, was a sufficient justification for restricting the freedom of speech.64×64. Id. at 349â62. As Justice Stevens noted angrily in dissent, âthe only relevant thing that has changed since Austin and McConnell is the composition of this Courtâ (p. 215).65×65. The author quotes id. at 414 (Stevens, J., concurring in part and dissenting in part).
As Biskupic notes, in two subsequent decisions, Arizona Free Enterprise Clubâs Freedom Club PAC v. Bennett,66×66. 564 U.S. 721 (2011). and McCutcheon v. FEC,67×67. 572 U.S. 185 (2014). the same five-member majority further restricted government efforts to regulate the impact of money in the political process (pp. 217â18). In his dissenting opinion in McCutcheon, Justice Stephen Breyer maintained that the Roberts Courtâs jurisprudence in these cases has âeviscerate[d] our Nationâs campaign finance laws,â leaving our nation âincapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve. . . . Where enough money calls the tune, the general public will not be heardâ (pp. 218â19).68×68. The author quotes id. at 233â37 (Breyer, J., dissenting).
While the Justices were deciding Citizens United, Chief Justice Roberts did an extensive C-SPAN interview during which he tried to explain how the Court âdiffers from the work of politicsâ (p. 220). âAll weâre doing,â he insisted, âis interpreting the lawâ (p. 220).69×69. The author quotes an interview with Chief Justice Roberts at Supreme Court Chief Justice Roberts, C-SPAN (June 19, 2009), https://www.c-span.org/video/?286078-1/supreme-court-chief-justice-roberts [https://perma.cc/BY5R-T3ER]. The Court, he added, is ânot a political branch of governmentâ (p. 220). Two months after the decision in Citizens United, Chief Justice Roberts repeated his usual refrain that âthe Court [is] above politicsâ (p. 220). But the shift from the decisions in Austin, where the majority opinion upholding the constitutionality of campaign restrictions was joined by Chief Justice Rehnquist and Justices Marshall, Brennan, White, Blackmun, and Stevens â four Republican appointees and two Democratic appointees â and McConnell, where the majority opinion upholding the constitutionality of campaign restrictions was joined by Justices Stevens, OâConnor, Souter, Ginsburg, and Breyer â three Republican appointees and two Democratic appointees â to Citizens United, Arizona Free Enterprise, and McCutcheon, in which all five Justices in the majority â Roberts, Scalia, Kennedy, Thomas, and Alito â had been appointed by Republican presidents, is striking (pp. 205â06, 214â18). Is the Roberts Court in these cases really âabove politicsâ (p. 220)? Biskupic does a persuasive job of suggesting otherwise.
During this time, Justice John Paul Stevens stepped down from the Court after thirty-five years of service, and President Obama nominated his Solicitor General, Elena Kagan, to fill his seat. Kagan was confirmed by a vote of 63â37. As Biskupic notes: âEvery senator who voted against her confirmation was Republicanâ (p. 226). With Justice Kaganâs appointment, âthe Courtâs ideological divisions now lined up neatly with the Justicesâ political affiliationsâ (p. 226). That is, the five conservative Justices (Roberts, Scalia, Kennedy, Thomas, and Alito) had all been appointed by Republican presidents, and the four liberal Justices (Ginsburg, Breyer, Sotomayor, and Kagan) had all been appointed by Democratic presidents. This was a virtually unprecedented state of affairs, and â[i]t was becoming more difficult for the public to accept the assertion that the Justices were not voting along political lines,â because âin the most closely watched cases, they divided exactly that wayâ (p. 226). For the Court as an institution, and for Roberts as Chief Justice, this posed a serious challenge.
It was against this background that the Court, in National Federation of Independent Business v. Sebelius,70×70. 567 U.S. 519 (2012). considered the constitutionality of President Obamaâs signature legislation, the Affordable Care Act, which had been enacted in 2010 (p. 222). The central question was whether Congress had the authority under the Commerce Clause to enact such legislation. Most lower courts that had addressed the issue had upheld the Act (p. 224). When the Justices first met in conference to vote, they divided 5â4, with all five conservative Justices voting to invalidate the law (p. 222). Over the course of several months, though, Chief Justice Roberts âchanged course multiple timesâ (p. 222), ultimately voting to uphold most of the Act based, not on the Commerce Clause, but on Congressâs taxing power.71×71. See id. at 575.
The outcome in the case came as a complete surprise, as most commentators predicted, in the words of Washington Post columnist E. J. Dionne, that â[a] Supreme Court that is supposed to give us Justice will instead deliver ideologyâ (p. 237).72×72. The author quotes E. J. Dionne Jr., In the Supreme Court, Activist Judges Take on Health Care, Wash. Post (Mar. 28, 2012), https://www.washingtonpost.com/opinions/activist-judges-on-trial/2012/03/28/gIQAKdE2gS_story.html [https://perma.cc/YZ6C-BYR9]. The legal analyst Jeffrey Rosen cautioned that â[t]his is John Robertsâs moment of truth,â for âif the Roberts Court strikes down health care reform by a 5â4 vote, then the chief Justiceâs stated goal of presiding over a less divisive Court will be viewed as an irredeemable failureâ (p. 238).73×73. The author quotes Jeffrey Rosen, Moment of Truth for Justice Roberts, Politico (Mar. 28, 2012, 10:27 PM), https://www.politico.com/story/2012/03/moment-of-truth-for-justice-roberts-074605 [https://perma.cc/24XR-DZ22].
As Biskupic notes, before the publication of The Chief, â[a] full account of [Chief Justice Robertsâs] actions during the Justicesâ private negotiations [had] not previously been reported,â but in The Chief she details the complex behind-the-scenes deliberations and negotiations âfor the first timeâ (p. 222). No one knows precisely what led Chief Justice Roberts to take the position he did in Sebelius, but it brought him both great praise and severe condemnation (p. 222).
Retired Justice Stevens observed that âthe [C]hief had shown integrity, . . . âbecause he certainly made himself very unpopularâ with the conservativesâ (p. 243). Indeed, â[c]riticism on the right was swiftâ (p. 245). The Wall Street Journal denounced Robertsâs performance as an unprincipled âone-man showâ (p. 245),74×74. The author quotes The Roberts Rules, Wall St. J. (July 2, 2012, 12:01 AM), https://www.wsj.com/articles/SB10001424052702304058404577494400059173634 [https://perma.cc/VBY3-VHKU]. reality-television personality Donald Trump tweeted âI guess Justice Roberts wanted to be a part of Georgetown society more than anyone knew,â75×75. Donald J. Trump (@realDonaldTrump), Twitter (June 28, 2012, 9:23 AM), https://twitter.com/realdonaldtrump/status/218379090493849601 [https://perma.cc/LWZ7-KNVP]. and other conservative critics maintained that his decision in Sebelius was âa blemish on his integrity and a breach of the lawâ (p. 246).
Biskupic reports that, as a result of such criticism, including from his fellow conservatives on the Court, â[f]riends said they had never seen him so dispiritedâ (p. 245). Biskupic concludes, though, that any sense on the part of liberals that Robertsâs vote in Sebelius âappeared to reflect an independent streakâ has clearly âevaporated over time as Roberts has remained a reliable conservative in virtually every other area of the lawâ in the years since (p. 222).
In 2013, for example, the Court, in a 5â4 decision in Shelby County v. Holder,76×76. 570 U.S. 529 (2013). held unconstitutional section 5 of the Voting Rights Act of 1965. As Biskupic notes, this case âbrought John Robertsâs work full circleâ (p. 249). Three decades earlier, when he worked in the Reagan Administration, he had written memos criticizing federal intervention into âthe election practices of the statesâ and insisting that the Voting Rights Act âshould be narrowly interpretedâ (p. 249). Chief Justice Robertsâs âopinion in Shelby County marked the first time since the nineteenth century that the Supreme Court struck down a provision of civil rights law protecting people based on raceâ (pp. 249â50).
Section 5 of the Voting Rights Act requires âstates with a history of race discrimination to submit any changes in their election rules to federal officials for preclearanceâ (p. 254). When the Shelby County case reached the Supreme Court, nine states, including Alabama, were still subject to the preclearance requirement (p. 249). Between 1982 and 2006, when Congress reauthorized section 5 by a vote of 98â0 in the Senate and 390â33 in the House, âthe Department of Justice had blocked more than seven hundred new registration and voting-related rules from taking effect based on the determination that they were discriminatoryâ (p. 254).
In 2008, the city of Calera in Shelby County, Alabama, wanted to put in place a new voting-district map that would have âeliminated the only black-majority district in the cityâ (p. 254). Applying section 5, President George W. Bushâs Justice Department voided the proposed map (p. 254). Shelby County sued, challenging the constitutionality of section 5 on the ground that, without proof that the cityâs specific intent in adopting the new map was to discriminate on the basis of race, the federal government had no constitutionally legitimate justification for intervening.
Although the Supreme Court had repeatedly upheld the constitutionality of the Voting Rights Act as âa valid exercise of Congressâs authority to enforce the Fifteenth Amendmentâ (p. 252), in Shelby County Chief Justice Roberts âhad a ready majority for his viewsâ (p. 264). In an opinion joined by Justices Scalia, Kennedy, Thomas, and Alito, Chief Justice Roberts maintained that the âproblems the Voting Rights Act was designed to correct no longer existedâ (p. 269). He based his conclusion that section 5 was unconstitutional on the theory of âequal sovereigntyâ â that is, that under our Constitution the federal government must presumptively treat all states equally (p. 270). âOur country has changed,â Chief Justice Roberts argued, âand while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditionsâ (p. 269).77×77. The author quotes id. at 557.
In her dissenting opinion, Justice Ginsburg criticized Chief Justice Roberts for ignoring well-established precedent that âhad rejected the argument that a principle of âequal sovereigntyâ could prevent differential treatment of states when it came to raceâ (p. 271). She also âridiculed Roberts for claiming that the evidence of discrimination was stale,â adding that âthose who cannot remember the past are condemned to repeat itâ (pp. 271â72).78×78. The author quotes id. at 576 (Ginsburg, J., dissenting). Justice Ginsburg insisted that â[t]hrowing out preclearance when it has worked and is continuing to work . . . is like throwing away your umbrella in a rainstorm because you are not getting wetâ (p. 272).79×79. The author quotes id. at 590.
Although his opinion in Shelby County has been widely criticized, Chief Justice Roberts has not backed down. As Biskupic notes, the decision has had significant consequences. In the wake of Shelby County, âTexas began enforcing a photo ID requirement for voters,â North Carolina âset to work on similarly restrictive measuresâ for voting, and other states previously subject to section 5 have moved aggressively to make minority voting more difficult (pp. 273â74). Indeed, the Chief Counsel of the NAACP Legal Defense Fund has charged the decision in Shelby County as âan egregious betrayal of minority votersâ (p. 273).
Still on the issue of race, the Roberts Court confronted the issue of affirmative action in Fisher v. University of Texas at Austin.80×80. 570 U.S. 297 (2013). Fisher was the first college affirmative action case to reach the Court since Grutter v. Bollinger, in which Justice OâConnor had played a critical role in 2003 in pulling together a five-member majority to uphold the constitutionality of the University of Michigan Law Schoolâs affirmative action program. During oral arguments in Fisher, âit appeared the Justices were ready to rule against the University of Texasâ and to hold the Texas affirmative action program unconstitutional (p. 265). As Biskupic reports, though, Justice Sotomayor âprovoked a different outcomeâ in the case âbased on arguments from her own experienceâ (p. 265).
Owing in part to affirmative action programs, Justice Sotomayor had been able to attend Princeton University and Yale Law School. She excelled at both institutions and thus described herself as âthe perfect affirmative action babyâ (p. 265). Justice Sotomayor was thus a fervent proponent of affirmative action. However, Justice Thomas, âthe only other person of color on the bench, had had a different experience with affirmative actionâ (p. 265). He maintained that he could never âescape the stigmatizing effects of racial preference,â and that he regretted going to Yale Law School because everyone there assumed âthat he had gotten in because he was blackâ (pp. 265â66).
After the Justices heard oral argument in Fisher, Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito were prepared to hold the Texas affirmative action program unconstitutional, undoing the critical compromise that Justice OâConnor had achieved in Grutter. Justices Ginsburg, Breyer, and Sotomayor indicated that they would dissent. Justice Kagan could not participate because she had been involved in the case when she was Solicitor General.
Justice Sotomayor then began drafting a dissent âin which she reflected on the disadvantages and slights that people of color continued to faceâ (p. 266). She âattempted to explain to her brethren in the majority that they did not understand what it was like to be a person of color in Americaâ (p. 266). The personal nature of Justice Sotomayorâs statement âoffended Roberts,â but it âmovedâ Justice Kennedy, who had voted in Grutter to strike down the affirmative action program in that case (p. 267). After reading Justice Sotomayorâs statement, Justice Kennedy âbegan to have second thoughtsâ (p. 267). In the end, he wrote a majority opinion that sent the case back to the lower courts for further review, leaving the central question of the constitutionality of affirmative action for another day. In the end, all of the conservative Justices but Justice Thomas signed on to Justice Kennedyâs opinion, as did Justices Breyer and Sotomayor (pp. 267â68).
Three years later, in 2016, the case returned to the Supreme Court in Fisher II.81×81. 136 S. Ct. 2198 (2016). In a four-to-three decision (Justice Kagan again recused herself and Justice Scalia had recently died and his seat had not yet been filled), the Court, in an opinion by Justice Kennedy, who had now come around to Justice OâConnorâs position in Grutter, upheld the constitutionality of the University of Texasâs affirmative action program. Justice Kennedy noted that âa university ha[s] âconsiderable deferenceâ to ensure student diversityâ because â[i]t remains an enduring challenge to our nationâs education system . . . to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignityâ (p. 313).82×82. The author quotes id. at 2214. Chief Justice Roberts and Justices Thomas and Alito dissented.
With Justice Kennedy as the Courtâs swing vote, the Roberts Court in these years also decided United States v. Windsor83×83. 570 U.S. 744 (2013). and Obergefell v. Hodges, in which the Court, in two 5â4 decisions, recognized a constitutional right to same-sex marriage. In both cases, Chief Justice Roberts and Justices Scalia, Thomas, and Alito furiously dissented. In his dissenting opinion in Obergefell, Chief Justice Roberts invoked âthe long-standing understanding that a marriage is a union between a man and a womanâ (p. 299). âJust who do we think we are?,â he roared (p. 299). âThis is a court, not a legislature. . . . We have to say what the law is, not what it should beâ (p. 299) (omission in original). At the end of his dissent he admonished: âIf you are among the many Americans . . . who favor expanding same-sex marriage, by all means celebrate todayâs decision. . . . But do not celebrate the Constitution. It had nothing to do with itâ (p. 299).
Chief Justice Roberts also compared the Courtâs decision in Obergefell to âthe Courtâs infamous Dred Scott84×84. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). decision of 1857â (p. 300). âDeriding his colleagues,â he quoted from the dissenting opinion in Dred Scott to the effect that when the âfixed rules which govern the interpretation of laws [are] abandoned, and the theoretical . . . opinions of individuals are allowed to control [the Constitutionâs] meaning, we have no longer a Constitution; we are under the government of individual menâ (p. 300) (alterations in original).
One of the strongest detractors of Chief Justice Robertsâs dissenting opinion in Obergefell, among many, was Judge Posner, who called Chief Justice Robertsâs argument âheartlessâ and âmocked his view of historyâ (p. 301). As Biskupic notes, Robertsâs position in Obergefell âillustrated that over the course of his legal life, at a time when American social attitudes were changing rapidly, John Roberts was not changing. Central to his personality was a constancy, an immovability. His views were fixedâ (p. 301).
On February 13, 2016, Justice Scalia died in his sleep. As Biskupic notes, â[u]nder normal circumstances, the vacancy would have been President Barack Obamaâs to fillâ (p. 303). But Senate Republicans, led by Senator Mitch McConnell, âblocked action on Obamaâs choice for nearly a yearâ (p. 303). Shortly after Justice Scaliaâs death, Leonard Leo, the executive vice-president of the Federalist Society, reached out to Senator McConnell to make sure that he would block any nomination by President Obama (p. 304). Senator McConnell declared that â[t]he American people should have a voice in the selection of their next Supreme Court Justiceâ and he therefore announced that he would not permit the vacancy to âbe filled until we have a new Presidentâ (p. 305). Senator McConnell and other conservative advocates had privately maintained that it was consistent with tradition not to confirm a Supreme Court nominee in the last year of a presidentâs term (p. 303).
This was an outright lie. Almost a quarter of Presidents have found themselves in this position, and the Senate has routinely confirmed their nominees.85×85. Geoffrey R. Stone, Opinion, Sen. Kirk, Hereâs How You Can Persuade the GOP to Consider Merrick Garland, Chi. Trib. (Mar. 28, 2016, 11:55 AM), https://www.chicagotribune.com/opinion/commentary/ct-mark-kirk-merrick-garland-supreme-court-perspec-0329-jm-20160328-story.html [https://perma.cc/R82F-C23T]. This list includes Presidents Washington, Jefferson, Jackson, Lincoln, Taft, Wilson, Hoover, Franklin Roosevelt, and Reagan.86×86. Id. There was, in short, absolutely no tradition of the Senate refusing to consider a Presidentâs nominee simply because the vacancy arose in the final year of the Presidentâs term. The Senate Republicansâ excuse for their refusal to consider President Obamaâs nomination was therefore patently dishonest.
Nonetheless, when President Obama nominated Chief Judge Merrick Garland, âa moderate liberal nomineeâ who was sixty-three years old and a âveteran appeals court judge,â Senator McConnell outrageously persisted in his refusal to consider Chief Judge Garlandâs nomination (p. 310). Then, ten days after Donald Trump was sworn in as President, he nominated Court of Appeals Judge Neil Gorsuch to fill Justice Scaliaâs seat. Don McGahn, President Trumpâs newly installed White House Counsel, âworked closely with the Federalist Societyâs Leonard Leo in the vetting of candidates for the Scalia seatâ (p. 316). According to McGahn, President Trump wanted a solid conservative, someone âwho, once seated on the bench,â would not turn into a moderate (p. 316). Moreover, during his campaign, President Trump had âvowed to appoint judges who would overturn Roe v. Wadeâ (p. 318).
During his testimony before the Senate Judiciary Committee, then-Judge Gorsuch, aping Chief Justice Roberts, declared that â[t]here is no such thing as a Republican judge or a Democratic judgeâ (p. 317). In response to the Republicansâ treatment of Chief Judge Garland, the Democrats filibustered the Gorsuch nomination, but the Republicans, who could not muster the sixty votes necessary to override the filibuster, instead changed the rules of the Senate âso they could approve Gorsuchâs nomination by a simple majority voteâ (p. 319). Thereafter, Justice Gorsuch was confirmed âon a nearly complete party-line vote,â with all fifty-one Republicans voting in favor (p. 319).
Not surprisingly, the Supreme Court with Justice Gorsuch on it turned out to be quite different from what it would have been with a Justice Garland on it. That, of course, was the point. According to Biskupic, in President Trumpâs first years in office he âdisrupted the nationâs constitutional normsâ by revealing âdisdain for due process of law,â belittling federal judges, and instituting âextreme measures to stop immigrants from crossing the southern border and seeking asylumâ (p. 325). In Biskupicâs words, â[a]n overriding question was whether the Court . . . would present a challenge to Trump . . . as the president shattered legal normsâ (p. 326).
Inside the Court, âconflicts among the Justices intensifiedâ (p. 327). The 2017 Term was an âunusually difficultâ one, âas many cases were decided by a single vote, with conservatives in the majority and liberals protesting vociferouslyâ (p. 329). Privately, the Justices expressed regret that âthe collegialityâ of the past âwas fadingâ (p. 330). But ârivalries, particularly involving the newest Justice, Gorsuch,â became more intense as the Court moved further to the right (p. 330).
Biskupic points to several decisions during the 2017 Term that proved bitterly divisive among the Justices. In Husted v. A. Philip Randolph Institute,87×87. 138 S. Ct. 1833 (2018). for example, Ohio enacted a law purging citizens from the voting rolls in a process triggered by the fact that they had not voted for two years.88×88. See id. at 1838. A federal law specifically barred removing voters because of a failure to vote.89×89. See id.; see also National Voter Registration Act, 52 U.S.C. §§ 20501â11 (2012). Nonetheless, in a 5â4 decision, with Chief Justice Roberts and Justices Kennedy, Thomas, Alito, and Gorsuch in the majority, the Court held that the Ohio law was permissible.90×90. See Husted, 138 S. Ct. at 1848. The four dissenters, Justices Ginsburg, Breyer, Sotomayor, and Kagan, invoked âthe nationâs history of racial discrimination, poll taxes, literacy tests, and other electoral practices that kept blacks and the members of other racial minority groups from votingâ (p. 333).
In another case, Abbott v. Perez,91×91. 138 S. Ct. 2305 (2018). the five conservative Justices overturned a lower court finding that in drawing new legislative maps after the 2010 census, Texas had âdenied Latinos an equal opportunity to elect candidates of their choiceâ (p. 334). Writing for the majority, Justice Alito maintained that âthe record failed to prove that the state legislature . . . had acted in bad faithâ (p. 334). Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, accused the majority of âignoring the factual recordâ and of dismissing the lower courtâs finding that âpolitical processes were ânot equally open to Hispanicsâ in Texas because of its âhistory of official discriminationââ (p. 334).92×92. The author quotes id. at 2354 (Sotomayor, J., dissenting). As Biskupic notes, â[t]he two sides plainly differed in their perceptions of discrimination in America and the Courtâs role when state governments perpetuated that discriminationâ (p. 335).
In Janus v. AFSCME, Council 31,93×93. 138 S. Ct. 2448 (2018). the Court again divided 5â4 in overturning a four-decade-old precedent in Abood v. Detroit Board of Education,94×94. 431â>https://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases,_volume_431â>431 U.S.â>https://en.wikipedia.org/wiki/United_States_Reportsâ>U.S. 209 (1977). in which the Burger Court had held in 1977 that states could constitutionally permit public-sector unions to collect union dues from nonunion members to support collective bargaining efforts benefiting all employees.95×95. See id. at 222. Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Gorsuch, overruled Abood and held that such a practice violates the First Amendment rights of nonunion employees.96×96. See Janus, 138 S. Ct. at 2486. Justice Kagan, writing for the dissenters, accused the majority of overruling Abood for no reason other than that they ânever liked the decisionâ (p. 336).97×97. The author quotes id. at 2501 (Kagan, J., dissenting). She wrote that the conservatives were âweaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policyâ (p. 336).98×98. The author quotes id.
As a final example from the 2017 Term, Biskupic cites Trump v. Hawaii,99×99. 138 S. Ct. 2392 (2018). in which the Court once again divided 5â4 in rejecting the claim that President Trumpâs effort to restrict immigration from certain Muslim-majority countries violated federal immigration law and the First Amendmentâs protection of religious freedom.100×100. Id. at 2423. Chief Justice Robertsâ majority opinion, joined by Justices Kennedy, Thomas, Alito, and Gorsuch, âlook[ed] past what Trump had said and consider[ed] the executiveâs power over immigrationâ (p. 338). In dissent, Justice Sotomayor, joined by Justice Ginsburg, pointed to President Trumpâs insults to Muslims, including such statements as âIslam hates usâ and â[w]eâre having trouble with Muslims coming into the country,â 101×101. Id. at 2436 (Sotomayor, J., dissenting). and argued that â[o]ur Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments.â102×102. The author quotes id. at 2448. In a separate dissenting opinion, Justice Breyer, joined by Justice Kagan, also rejected the majorityâs analysis (p. 338).
At the end of the 2017 Term, Justice Kennedy announced that he was retiring. Despite Justice Kennedyâs consistent embrace of the Roberts-Thomas-Alito-Gorsuch positions in his last year on the Court, throughout his career, like Justice OâConnor, he had often rejected the views of his more conservative colleagues on such critical issues as affirmative action, abortion, and gay rights, and found common ground with the more liberal Justices.
With the nomination and confirmation of Brett Kavanaugh to replace Justice Kennedy â the same Brett Kavanaugh, by the way, who successfully encouraged President George W. Bush to appoint John Roberts as Chief Justice â the Court shifted even further to the right. It is stunning that over the past half-century Republican presidents have made fourteen of the last eighteen appointments to the Supreme Court â even though Republican presidential candidates won the popular vote in only six of the last thirteen elections. Moreover, the conservative ideology of the more recent Republican nominees, including all five on the Court today, is far more extreme than the conservative ideology of the Justices who were considered âconservative,â for example, in the Nixon era.
Biskupic notes that, as things now stand, Chief Justice Roberts is âthe member of the conservative bloc closest to the centerâ (p. 344). But he will âbe no âswing voteâ like Kennedy, whose flexible approach meant the four liberals had [at least] a chance to attract his voteâ (p. 344). In practical effect, Biskupic asks, in light of the current state of the Court, how can âthe Chief Justice still insist that judging [has] nothing to do with politics?â (p. 344). The plain and simple fact is that, despite Chief Justice Robertsâs continuing assertions to the contrary, the best way to predict the votes of the conservative Justices on the Court today in important cases involving such issues as guns, campaign finance, gerrymandering, abortion, religion, affirmative action, gay rights, immigration, public sector unions, voting rights, and the like has nothing to do with judicial restraint, originalism, textualism, footnote four,103×103. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938); Stone & Strauss, supra note 20. or any other âprincipledâ approach to constitutional interpretation. It is, rather, simply to ask what outcome the Republican Party would favor. Sadly, we have come a long way from the era when Justice OâConnor was on the Court.
Taken together, First and The Chief describe Justices with starkly different paths to the Court. Sandra Day OâConnor was raised on a ranch in the Southwest with no running water, electricity, or indoor plumbing. John Roberts, the son of a steel executive, was born into relative comfort in suburban Indiana. Although both attended â and excelled at â elite schools, only Roberts could find a paying job after graduation. OâConnor, excluded from all-male law firms in Phoenix, Arizona, worked for a district attorney for free; Roberts clerked for Judge Friendly and then-Justice Rehnquist before becoming Special Assistant to the Attorney General. OâConnor entered private practice by opening her own firm in a strip mall and handling whatever cases she got; Roberts did so by joining a large firm and specializing in appellate litigation. OâConnor became a state legislator; Roberts became Deputy Solicitor General. OâConnor ran for and won a seat as a trial judge in state court, where she was so assertive that lawyers complained she was too tough on them; President Bush rewarded Roberts for his work on Bush v. Gore with a seat on the D.C. Circuit, where â his eyes on the Supreme Court â he went out of his way to avoid controversy. President Reagan nominated OâConnor to the Court in part because he had promised to nominate the first woman Justice; President Bush nominated Roberts to the Court in part because he wanted a consistent conservative vote.
Although Justice OâConnor occupied the ideological center of the Court during most of her tenure â just as Chief Justice Roberts does now â these two Justicesâ contrasting personal histories contributed to wildly different judicial philosophies. Justice OâConnor â shaped by her time at the Lazy B, in the Arizona legislature, and as a trial judge â was a pragmatist. Though she experienced rampant sex discrimination as a lawyer, as a legislator, and even as a Justice, she acquiesced to the practical realities of her time; she did not fight for radical change. Instead, she worked within the system: she opened her own firm instead of practicing at an existing one, waffled over the ERA while fighting to overturn laws discriminating against women in Arizona, and simply ignored the âminor diminishmentsâ of her colleagues on the Court (p. 151). As a Justice, she was âmoved less by constitutional theory than by . . . purely practical problemsâ (p. 194) and was far from an ideological purist. She had âan intuitive feel for the public moodâ that guided her decisions and helped her create a âfragile national consensusâ on controversial issues like abortion.104×104. Evan Thomas, How the Supreme Court Justice Sandra Day OâConnor Helped Preserve Abortion Rights, New Yorker (Mar. 27, 2019), https://www.newyorker.com/news/news-desk/how-the-supreme-court-justice-sandra-day-oconnor-helped-preserve-abortion-rights [https://perma.cc/GG7Z-ESVC]. Though she was conservative, her jurisprudence, according to Thomas, was âto say as little as possible and to let the argument evolve through the delicate balance between legislatures elected by the people and judges sworn to protect the Constitutionâ (p. 264). And she prided herself on her ability to find common ground. After retiring, she lamented that all the compromises she had reached â on, among other things, campaign finance, abortion, and affirmative action â were being undone.
In contrast, The Chief paints Chief Justice Roberts as an ideologue. Unlike Justice OâConnor, he experienced almost no setbacks in life;105×105. Ronald Collins, Ask the Author: âMr. Everythingâ â Joan Biskupic on Chief Justice John Roberts, SCOTUSBlog (Apr. 11, 2019 10:05 AM), https://www.scotusblog.com/2019/04/ask-the-author-mr-everything-joan-biskupic-on-chief-justice-john-roberts/ [https://perma.cc/HNL9-DWW9] (âI often asked people who knew Roberts in his younger years about setbacks he might have experienced. That question stumped people. He seemed to have so few things go wrong, and he appeared good at just about everything.â). born into a world where his identities were structurally advantaged, he never had to compromise to achieve his goals. Although he was conservative from an early age, his views became increasingly unyielding after working in the Reagan Administration. They eventually earned him a seat on the Court. And though as a Justice he is âmore judicially temperate than the other Republican appointeesâ â in part because he is the Chief Justice106×106. Id. â Biskupic is not optimistic that he will become a pragmatic moderate like Justice OâConnor. Though â[t]he Courtâs reputationâ going forward will âdependâ heavily on Chief Justice Roberts â on how he casts his votes and how he steers the other Justices (p. 344) â Biskupic notes that some of Chief Justice Robertsâs colleagues do not trust him and think âthat he is not always acting in good faith, that he is not an honest brokerâ (p. 347).
Moreover, although Chief Justice Roberts has consistently maintained that âhe has no political agenda on the bench,â Biskupic concludes that âhis opinions show that, despite the âumpireâ assertion,â he did not in fact âshed his partisan thinking once he donned the black robeâ (p. 347â48). With the retirement of Justice Kennedy and the appointment of Justice Kavanaugh in his place, she concludes that the Chief Justice is now âleading a Court increasingly in his own image. He is positioned at the center in every way, and the law will likely be what he says it isâ (p. 349).
Let us hope that Chief Justice Roberts understands the stakes and does not undermine both the integrity of Supreme Court and his own place in history. In short, let us hope that Chief Justice Roberts will find a bit of Justice Sandra Day OâConnor in his soul.
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* Edward H. Levi Distinguished Service Professor of Law, The University of Chicago. I would like to thank Professor Jane Dailey for her comments on an earlier draft of this piece.