American Justice 2014. Garrett Epps

of the bravery of the civil rights movement and the persistence of a bipartisan coalition in Congress. But the court played an important part.

      Since that time, I have felt a kind of reverence for the Constitution and for the judges who follow it. That reverence led me after a career in journalism to law school and a second career following the Constitution and the court. I feel elation when courts and citizens read the document as a charter of equality and a set of rules for self-government. I feel anger and despair when they read it as a bulwark of privilege and paralysis.

      I explain this only so that the reader will understand two things about American Justice 2014. First, of the court’s published opinions, I have concentrated on those that interpret the Constitution because I know a little bit about the subject. I have almost nothing to say about employee stock ownership plans under the Employee Retirement Income Security Act or about the Copyright Act of 1978 as applied to the individual remote-antenna technology pioneered by Aereo Inc. This book assesses how the court cared for the Constitution during OT13 and refers to other cases if at all simply to illuminate ongoing constitutional disputes. I give short shrift even to some constitutional decisions when they did not represent important divisions within the court.

      Second, what follows is my frank assessment of the decisions I discuss and of each of the nine justices as I observe them, watching them on the bench and reading reams of their writing. Not to hide the ball, I believe the court reached essentially the right decision in Hall v. Florida (procedures for assessing potentially intellectually disabled defendants in capital proceedings), Susan B. Anthony List v. Driehaus (organizations’ right to challenge laws against making “false statements” during election campaigns), and National Labor Relations Board v. Noel Canning (use of “recess appointments” to name members of the National Labor Relations Board while the Senate was holding pro forma sessions). I believe the court erred, in some cases badly, in McCutcheon v. Federal Election Commission (aggregate limits on federal campaign contributions by individuals), Town of Greece v. Galloway (explicitly Christian prayer at town council meetings), Schuette v. Coalition to Preserve Affirmative Action by Any Means Necessary (statewide referendum on affirmative action in higher education admissions), Harris v. Quinn (“agency fees” for state-paid home health-care workers), and Burwell v. Hobby Lobby Stores (religious objections to insurance coverage for contraception as required by the Affordable Care Act).

      You may very well disagree with me on any or all of these cases, but read on: if this book brings any pleasure and profit, it likely arises from whatever disagreement it stirs in the reader. With each passing year, as I learn more about the Constitution, I grow more convinced that the Constitution of 2014—the 1789 text and the twenty-seven amendments that “we the people” have added during two centuries of blood and hardship—serves its function not when it provides answers but when it sparks questions. Some interpreters of the Constitution claim to understand and follow the “original understanding” of its authors; others insist they are applying a “living document” as history changes the meaning of its words. Others disclaim what Judge J. Harvie Wilkinson III of the Fourth Circuit called “cosmic constitutional theory,” suggesting that judges should work with whatever lawyers’ tools seem most suited to resolve a particular dispute. In the end, these methodological quarrels don’t mean much to citizens. Whenever we debate the Constitution, we are in fact arguing not about words or history or legal precedent but about what our country should look like tomorrow. Our deepest desires for our country are often at odds with those of our neighbor; arguing about the Constitution gives us an alternative to settling our disputes by shedding blood.

      As a peace-keeping device, the Constitution has a mixed record. Its original version failed catastrophically in 1861, producing a grisly national festival of fratricide. But since the Constitution was born again in 1865–70, it has succeeded well at providing us a set of rules for social argument and debate. It is, in effect, the deck of cards in our national high-stakes poker game. Those who read the cards differently than I do are welcome to do so. Walt Whitman, our great constitutional poet, once wrote of human identity that “every atom belonging to me as good belongs to you.” Nowhere is that more true than of the Constitution and of its judicial vestals, the nine justices of the US Supreme Court.

      Before we begin, I would like to acknowledge some people who have contributed to the success of this venture. Damon Linker of the University of Pennsylvania Press proposed this project to me at the beginning of the term and has supported it stalwartly since then. I thank him and the staff at the press for introducing me to the new world of e-books. My assistant, Shavaun O’Brien, can, I am convinced, do anything between a 10 a.m. emergency e-mail and lunch; she saved the project innumerable times. Dean Ron Weich of the University of Baltimore School of Law encouraged me to explore a new kind of legal scholarship. My University of Baltimore faculty colleague, Elizabeth Samuels, is as always a force for good in my work. My research assistants at the law school, Kristen Lim and Valerie Anias, provided crucial assistance, as did David Matchen and the rest of the staff of the University of Baltimore Law Library. In the final stage of writing, I took refuge in the Duke University Law Library; thanks to gracious hospitality from professors Paul Haagen and Dick Danner and Frances Conrad of the dean’s office, it was idyllic. Kathy Bader was, as always, the perfect hostess during that frantic time.

      As Supreme Court correspondent for the The Atlantic Online, I have worked with a number of talented editors, including Bob Cohn, John Gould, David Graham, Jennifer Rothenberg Gritz, Emma Green, Don Peck, and Scott Stossel. I was also lucky enough to gain admission to the court’s press room and press gallery; the staff of the Supreme Court Public Information Office has been patient, generous, evenhanded, and good humored. In the press room, the brightest reporters in America decode the court’s workings for the public. I am in awe of their care, thoroughness, fairness, knowledge of the law, and ability to make complex concepts clear. I must particularly thank Lyle Deniston of SCOTUSblog, who freely shared his matchless knowledge of court history and procedure. All these professionals have shown innumerable kindnesses to an academic interloper. I freely confess that I steal from them almost daily.

      Introduction

      The Branch That Works

      As late as Friday, there were rumors that the court might not open on time. Since 1917, the first Monday in October had been inviolate as the first day of the court’s October term. But the Republican House and President Obama entered October seemingly locked in a death spiral. The Republican majority, impelled by its radical “Tea Party” wing, had returned from its summer recess with one demand: the president must agree to the repeal of his signature accomplishment, the Affordable Care Act (ACA). It was an extreme, almost surreal, demand. The Supreme Court had upheld the ACA—in most of its provisions—in June 2012. It had then been the major issue in the presidential and congressional elections of 2012, and the voters had, if not enthusiastically, decisively approved it. Polls showed that the voters—Republicans, Democrats, and independents—were dissatisfied with the act, but they wanted Congress to fix it, not repeal it.

      But the Republican “base”—far to the right of the country or even Republican voters generally—wanted blood. A faction in the House blocked approval of new funding for the government and promised to restore it only when the Democrats agreed to total repeal of the ACA. It was as if Confederate generals had arrived at Appomattox Court House demanding Lincoln’s resignation.

      On October 1, 2013, the great shutdown began. Only essential federal workers were to report. The Capitol was nearly deserted. On October 3, the US Capitol police shot and killed a mentally disturbed woman who seemed to be trying to drive a car onto the grounds. Senators and house members cowered inside the building while the high-speed chase went on—protected by men and women whose paychecks they had blocked.

      Just to the east of the Capitol, at the corner of E Capitol Street and First Street NE, the Supreme Court’s marble palace loomed like a giant question mark. The court is an independent branch of government, of course, not subject to Congress’s control. But as Alexander Hamilton had pointed out in 1788, it has neither “the sword nor the purse.” Lyle Deniston, the dean of Supreme Court reporters, wrote in late September 2013, “Although the court does have awesome powers, it has no authority to print its own money.” It would be a telling