Uncertain Justice: The Roberts Court and the Constitution - Hardcover

Tribe, Laurence; Matz, Joshua

Hardcover

ISBN 10: 0805099093 ISBN 13: 9780805099096

Publisher: Henry Holt and Co., 2014

Synopsis

With the Supreme Court more influential than ever, this eye-opening book tells the story of how the Roberts Court is shaking the foundation of our nation's laws

From Citizens United to its momentous rulings regarding Obamacare and gay marriage, the Supreme Court under Chief Justice John Roberts has profoundly affected American life. Yet the court remains a mysterious institution, and the motivations of the nine men and women who serve for life are often obscure. Now, in Uncertain Justice, Laurence Tribe and Joshua Matz show the surprising extent to which the Roberts Court is revising the meaning of our Constitution.

This essential book arrives at a make-or-break moment for the nation and the court. Political gridlock, cultural change, and technological progress mean that the court's decisions on key topics―including free speech, privacy, voting rights, and presidential power―could be uniquely durable. Acutely aware of their opportunity, the justices are rewriting critical aspects of constitutional law and redrawing the ground rules of American government. Tribe―one of the country's leading constitutional lawyers―and Matz dig deeply into the court's recent rulings, stepping beyond tired debates over judicial "activism" to draw out hidden meanings and silent battles. The undercurrents they reveal suggest a strikingly different vision for the future of our country, one that is sure to be hotly debated.

Filled with original insights and compelling human stories, Uncertain Justice illuminates the most colorful story of all―how the Supreme Court and the Constitution frame the way we live.

About this title

About the Author:

Laurence Tribe has taught constitutional law at Harvard for four decades and written widely about the law―including the most frequently cited treatise on the U.S. Constitution. He has argued dozens of cases at the Supreme Court, including the first argument in Bush v. Gore. Joshua Matz, a graduate of Harvard Law School and a frequent contributor to SCOTUSblog, is a clerk for a federal judge in Los Angeles. Together, Tribe and Matz taught an acclaimed course at Harvard about the Supreme Court and the Constitution. Tribe lives in Cambridge, Massachusetts; Matz lives in Los Angeles, California.

Excerpt. © Reprinted by permission. All rights reserved.:

Prologue: Uncertain Justice

H. L. Mencken reputedly said, “For every complex problem, there is a solution that is simple, neat, and wrong.”1

Understanding the Supreme Court undoubtedly qualifies as a “complex problem.”2 The nine justices currently issue more than seventy opinions every year, some of them thunderbolts that rock American life and others rightly destined for obscurity. With a hand in nearly every major issue of our time, from privacy and affirmative action to gun rights and health care, the Court is inescapable. Yet it is also mysterious and secretive, committed to rituals and reasoning that even experts struggle to understand. Its opinions are poked and prodded, examined under a microscope and held up to the light. The public hangs on to rumors of backroom drama, while scholars read tea leaves and prophesy the future. Clear trends predominate in certain areas of law, but efforts to develop a unified field theory of the Court—to explain its work as the result of a particular clash of politics, personalities, or principles—inevitably fall short. Even in this age of statistical models that seek to wring hidden meaning out of human behavior, the nine men and women who make up the Court intrigue and surprise us.

Consider a handful of the Court’s rulings since 2005, when John G. Roberts Jr. was appointed Chief Justice of the United States.3 In 2008, faced with a challenge by detainees held at Guantánamo Bay, the Roberts Court struck down an Act of Congress regulating national security in wartime.4 That same year, a narrow majority invoked the Constitution’s “original meaning” to hold that the Second Amendment protects an individual’s right to keep and bear arms.5 In 2010, the Court issued Citizens United v. Federal Election Commission, triggering heated debate over corporate money in American politics.6 Then, in 2012, the Court upheld Barack Obama’s signature achievement—the Affordable Care Act.7 Since 2012, this Court has also blocked state efforts to regulate immigration,8 limited warrantless GPS surveillance,9 invalidated part of the Voting Rights Act,10 and held that part of the Defense of Marriage Act violates the rights of same-sex couples.11 Trying to comprehend the legal precedents, constitutional philosophies, and judicial personalities that shape these wildly divergent decisions can seem overwhelming.

Of course, an effort to understand the Roberts Court—much like an effort to understand the Court at any point in history—must reckon with more than just its results. The Court issues opinions in which the justices grapple with fundamental principles, argue over what the Constitution means and what role they should play in giving it life, and offer signals of where they are heading. These opinions open a window into the justices’ hearts and minds, giving us a glimpse of how they view the world. In many cases, the justices’ decisions, as well as their concurrences and dissents, also exert a magnetic pull on American life, both in their practical effects and through their bold interventions in our discourse. When Justice Sandra Day O’Connor warned that “a state of war is not a blank check for the President,”12 and when Roberts condemned the “sordid business” of “divvying us up by race,”13 they spoke to the public about constitutional values in ways that can’t simply be reduced to how they voted in those cases.

Judicial opinions, though, can defy easy comprehension. Far too often, their meaning is misunderstood. It doesn’t help that in controversial cases, the Court frequently erupts in a confusing cacophony of competing writings. Nor do its opinions always offer a comprehensive and transparent view of the Court; sometimes they are downright misleading.

The complex problem, then, is that the Supreme Court presents many kinds of uncertainty: What is really going on within the Court? What moves the justices to take the actions they do? How will they resolve the issues that reach them in the future? What roles do they see for themselves? Are they achieving what the Constitution requires or justice demands?

To be sure, this uncertainty has its limits. The Court is not a legal randomizer, emitting new constitutional rules without rhyme or reason. In less than a decade, for instance, the Roberts Court has wrought remarkable and directed changes in many areas of the law, forever transforming how the Constitution is understood. Yet the shifting boundaries of what we can know about the Court, the futures that seem likely and the precedents not long for this world, tell a captivating story in their own right. As Carl von Clausewitz observed, “Although our intellect always longs for clarity and certainty, our nature often finds uncertainty fascinating.”14

In some important domains of constitutional law, a majority of the Roberts Court stands on the brink of revolution yet seems profoundly uncertain about whether and how to proceed. In other domains, it has already initiated major changes whose long-term effects are clouded in mystery. Some of these developments reflect a desire by the justices to remake our constitutional understanding, while others have been forced by dramatic cultural, technological, and political upheaval. Although uncertainty is not unique to the Roberts Court—it is always part of life at the Marble Palace—it affords an especially helpful entry point to this Court.

Many of the most important stories of the Roberts Court consist not of definitive rulings but of the portents and fault lines that lurk in opinions and hint at what lies ahead. In this book, we show how conventional wisdom on these matters is often misleading, and we draw out the latent meaning of many of this Court’s most important opinions to identify the uncertainties facing the nation and its justices.

To that end, we do not adopt a standard convention in books about the Court: the “deep explanation.” We do not point to a strong left/right split, a partisan realignment, or a dispute over legal method and then argue that the life of the Court really boils down to that story. We do not claim that the Roberts Court is ultimately about a fight between “activism” and “judicial restraint,” both of which are largely useless terms (all justices are “activists” in certain areas of constitutional law). We do not pick one or two justices and insist that their agendas or struggles fundamentally define the Court. Nor do we distill the Court down to “liberals” and “conservatives,” explaining cases as the result of ideological blocs and agonizing over one or more inscrutable “swing voters.”

There is, of course, much to be said for these approaches to the Court. Executed well, each can reveal important patterns, draw out the underappreciated influence of a particular justice or idea, and identify overall coherence or contradiction in the Court’s undertakings. Yet writing about the Court is not like examining the physical universe. Whereas scientists can at least strive for perfection in their models, only a madman or a fool would ever claim to have fully explained the Court.15 At times, this realization can inspire an intense frustration: scholars of the Court inevitably feel as if they are trying to nail jelly to the wall, to borrow an apt phrase from Teddy Roosevelt.16 In the end, though, accepting this limitation is liberating. It points the way toward a more ecumenical mind-set that can shed valuable light on the Court by approaching it from many angles at once.

Indeed, there are particularly good reasons to look skeptically on all of the leading deep explanations. They often overstate the determinate role of politics, principles, or personality and thereby squeeze out crucial elements of uncertainty and contingency. They certainly don’t capture how the justices actually think about their work or their positions on a nine-member court. Justice Elena Kagan tends to lean left and Justice Samuel A. Alito Jr. tends to lean right, but neither of them would ever approach a case by saying, “I’m a [liberal/conservative], so what does that mean for my vote here?” Nor do any of the justices reflexively think in, say, activist or nonactivist terms when considering how to work through constitutional issues.

To the contrary, in deciding how to vote and what to say, the justices are moved by a dizzying array of considerations, only some of them apparent to the public.17 First and foremost, the justices must account for what the Constitution requires. This may seem straightforward enough. But as Justice David Souter remarked after he resigned from the Court, “The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.”18 He explained, “We want order and security, and we want liberty. And we want not only liberty but equality as well.”19 Reconciling those values calls for brilliant legal analysis, but it also requires judgment.20

Charged with ascertaining what the Constitution means and then creating law to implement its commands, the justices necessarily draw on a wide range of tools. They look to the Constitution’s text, how it was understood when it was ratified, our national history, judicial precedent, the Constitution’s values, and the practical needs of our time.21 No justice relies uniformly on one method of interpretation. They all practice the art and science of forging meaning from different materials, matching a timeless constitution to a changing world. In so doing, they are influenced by reason and principle, but also by their unique experiences and personal quirks.

Many other factors shape the Court’s decisions. Like any branch of government, the Court cares deeply about its legitimacy and its role in our democratic society.22 Blessed with tremendous power, cursed with great responsibility, and fated to serve in a cynical age, the justices of the Roberts Court know well that the power to persuade is among their mightiest weapons. Decisions on big data or gay rights, for example, interact with a quickly changing culture. That power, in turn, can affect the Court itself: the justices, after all, are very much a part of the culture they help shape. To study the Court is thus to examine an institution whose own rulings alter the path down which it travels.

The nine justices also practice their own form of politics. Not the low and occasionally demoralizing politics of our endless partisan struggle, but a high politics of constitutional principle, in which they compete to define the framework of our fundamental law.23 That politics, like all politics, contains an irreducible human element. The justices approach their task from different backgrounds, and with different temperaments and predispositions. They have each given a great deal of thought to the Constitution and its long history. Yet even with all of them acting in good faith, major conflict is unavoidable. Those disagreements unfold in a shifting matrix of alliances, betrayals, and rivalries, as a succession of justices address myriad issues all at once and debate them through the decades.

In those contests, every justice matters. For that reason, any accounting of the Roberts Court must grapple with the uncertainty inherent in a Court steered not just by one chief but by nine unique individuals—each with a different vision and voice, each with just one vote, and each keen to take the lead on certain issues. Adam White has thus speculated in the Wall Street Journal, “Maybe we have a court without leaders.”24 That’s an intriguing proposition, but we would amend it: the Roberts Court has nine leaders, not none.

Against this vibrant, complex reality of life at the Court, deep explanations usually flatten the justices into cardboard cutouts. In terms attributed to Mencken, these arguments are “simple, neat, and wrong,” even though many of them are actually quite intricate. Sometimes they ignore or miss out on revealing stories and intellectual struggles that reflect the justices’ worldviews; too often, they fail to take the justices’ beliefs seriously. Worse, they elide the uncertainty so vital to any satisfactory account of the Roberts Court, whose work involves an ever-shifting mix of principle, ideology, statesmanship, and personality.

In lieu of a comprehensive theory that maps the grand meaning of it all, we approach nine areas of law with an eye to elements of intrigue and surprise—and an openness to different ways of illuminating the Roberts Court. Some chapters emphasize a clash of principles, while others highlight personalities or practicalities. We zoom in on some important decisions and then zoom out to afford a panoramic view when details obscure the big picture. At times we draw heavily on history to unmask hidden meanings; in other circumstances, we focus mainly on the future. Individual justices take center stage when their contributions have proved to be especially important, or when an opinion sheds valuable light on their personality and beliefs.

Throughout, we treat the Court’s complexity not as an obstacle to be overcome but as a key to understanding why it has reached some surprising decisions and what its future holds. We aim to make useful generalizations about why the justices see things the way they do, what competing visions press against their core beliefs, and where their assumptions and aspirations are likely to lead them. To achieve that goal, we often focus on nodes of uncertainty—points where debate about the Constitution’s meaning is particularly intense, the Court is torn about its role, the effects of its decisions remain obscure, or the justices’ goals seem unclear or contradictory.

For centuries, Americans have looked to the Court with great expectation and even greater concern. As Justice Oliver Wendell Holmes Jr. remarked at a New York dinner party in 1913, “We are very quiet there, but it is the quiet of a storm center.”25 Public interest in the Court has spiked in recent years, as the justices have waded into debates over guns, privacy, health care, campaign finance, and many other controversial issues. Their pronouncements drive not only the daily headlines but also the moment-to-moment discourse that plays out online. This is as it should be. When the justices speak, our world changes. Whether lauded or scorned, their decisions shape our future.

This book is meant to help readers better understand their Court. By exploring the Roberts Court in all its wondrous complexity, we aim to bring to life the nine lawyers who gather in a conference room and create the rules by which we live. By charting uncertainty, we reveal possibility. Justice means something different to each of us; we will all evaluate the Court differently. But we can all agree that where the Court’s future is most uncertain, so is the justice it will render.

There’s a magic to it, a power that always sends a chill down one’s spine. The bell chimes. The velvet curtain rustles. The Marshal chants, “Oyez! Oyez! Oyez! . . . God save the United States and this Honorable Court!” Nine black-robed justices appear, all together, arrayed behind an arced bench that lets every one of them face the lawyers lucky enough to argue at our highest court. The air thickens with tension, the journalists lean forward, and a few of the justices crack jokes under their breath and struggle not to laugh too loudly. Then the Chief Justice of the United States calls the room to order, and the proceedings—most commonly oral argument or the announcement of an opinion—commence.

By convention, and because many other ways of slicing up the flow of time would be even more arbitrary, periods of Supreme Court history are named afte...

About this edition

• Publisher: Henry Holt and Co.
• Publication date: 2014
• ISBN 10: 0805099093
• ISBN 13: 9780805099096
• Binding: Hardcover
• Edition number: 1
• Number of pages: 416