American Justice 2014. Garrett Epps

and minorities to register and vote. Critics said that perhaps things had not changed quite as much as the chief had claimed.

      The issue of same-sex marriage had roiled electoral politics for a decade. After the Massachusetts Supreme Judicial Court decided that same-sex couples had a right to legal marriage, state after state held referenda approving state constitutional bans on anything but the union of “one man and one woman.” Before a single gay couple was allowed to wed, Congress weighed in by forbidding the federal government to recognize any same-sex unions. In June 2013, the court had (as with the ACA) split the difference. It struck down the federal Defense of Marriage Act (DOMA) and ordered the federal government to stop discriminating against same-sex couples legally married under state law, but it used a technical doctrine—“standing to sue”—to avoid ruling on Proposition 8, a California state constitutional amendment banning gay marriage. The DOMA opinion, however, convinced federal judges around the country that same-sex marriage was required, and state marriage bans started falling like dominoes around the country.

      Would 2013 mark a break from the court’s polarizing role? The first case on its docket was a fresh challenge to federal campaign regulations, one with the potential of changing the political playing field as sharply as Citizens United.

      The attacks on the ACA continued, with a group of for-profit corporations demanding that they be allowed to withhold coverage of contraceptives from their employees despite the act’s requirements. The corporations (the lead plaintiff was a family-owned chain called Hobby Lobby) claimed that providing the required coverage violated their right to the “free exercise” of their religion, which frowned upon some methods of contraception. Like the “inactivity” argument, the idea that corporations had “religion” and that commercial regulations could “burden” their “free exercise” was new. Again, whatever the court decided, a large part of the country and one of the political parties would be furious.

      The court had agreed to hear a town government’s plea for permission to impose Christian prayer on public meetings. Also on the docket was a fresh challenge to affirmative action and a case that took dead aim at public-employee labor unions.

      At the outset of Obama’s first term, the court had enjoyed the confidence of the public. In a Gallup poll before the October 2009 term, 61 percent of those surveyed approved of how it was doing its work, with only 30 percent disapproving. In late September 2013, however, only 46 percent approved, a statistically insignificant one point higher than the disapproval rate of 45 percent. Even the reasons for the trend were polarized: Thirty percent told Gallup that the court was “too liberal” while 23 percent said it was “too conservative.” Roberts himself got good marks (55 percent in the fall of 2013), but the court was trending downward.

      The government shutdown would last until October 17. But as SCOTUSblog’s Deniston noted, the court must have found reserve funds in its budget somewhere. On the scheduled day, Monday, October 7, the nine justices emerged from behind the velvet curtain to hear the case of McCutcheon v. Federal Election Commission. While the rest of the government lay in suspended animation, the judicial branch was at work.

      But if there was a swagger in the steps of the justices as they entered the courtroom, it may not have entirely been deserved. True, the court kept operating through thick and thin. (It was not unusual for the Supreme Court to hold oral arguments during blizzards that closed every other government office in Washington.) But was it entirely innocent during the creation of the partisan preening and thinly veiled hatred that poisoned the rest of the system?

      In December 2000, the court had inserted itself into the 2000 presidential election and chosen the winner. In doing so, it put in office perhaps the single most polarizing political figure of our time, George W. Bush. Rich individuals and PACs, emboldened by the court’s campaign finance decisions, have flooded the airwaves with ads that portray candidates and officeholders as evil, dishonest, dangerous, and almost satanic. No single force has done more to increase partisan hatred and suspicion than the toxic flood of anonymous electronic accusation and innuendo that now forms the core of American political campaigns. In 2004, the court was offered a chance to put limits on the computer-driven partisan reapportionment that is separating the House of Representatives into safe Republican and Democratic districts; it refused even to consider it. In 2008, the court also washed its hands of any limits on voter ID laws—more or less openly devised by Republican state legislatures to reduce turnout among Democratic voters.

      In fact, as the court convened in October 2014, many state legislatures were at swords’ point over an issue the court had created out of thin air: whether to expand Medicaid in line with the terms of the ACA. Had the court not created its new rule against Congressional “coercion,” there would have been nothing to fight over.

      No one who observes the chief justice would doubt that he was quite sincere in his wish for greater unanimity, greater judicial modesty, and a widely respected Supreme Court quietly calling “balls and strikes.” But history shreds good intentions. Like any other political figure, the chief is limited by internal and external forces. The nation is divided; its legal system is also divided, no less than any other part. Lawyers across the country—some of them backed by almost unlimited funding from political and ideological groups—are working assiduously to destroy labor unions, health-care programs, environmental initiatives, and civil-rights protections. Other well-funded groups are determined to preserve precedents from earlier courts that furthered minority rights and increased protection for criminal suspects.

      And the chief is only one of nine. Many of his conservative colleagues—particularly Justice Antonin Scalia, the senior conservative, and Justice Samuel Alito, the junior—are ready to reverse decades of precedent in pursuit of their conservative agenda.

      Beyond that, it is a melancholy truth that human beings are capable of wishing for mutually incompatible things—order and freedom, for example, or safety and excitement. Both wishes may be sincere, but they may also be at war with each other. In his desire for harmony, acclaim, and hegemony, the chief was also fighting himself.

      Ronald Reagan’s spirit brooded day and night above the Roberts court. Its five conservative members all, in one way or another, owed their eminence to Reagan. Reagan appointed Justices Scalia and Kennedy. He plucked the young Clarence Thomas from obscurity and named him head of the Equal Employment Opportunity Commission, his first step toward to the high court. John Roberts and the young Sam Alito had been foot soldiers in the Reagan revolution, junior attorneys in the Reagan White House and Justice Department.

      A decade after his death, the soft focus of historical memory has transformed Ronald Reagan into a cheering symbol of national esprit. But in life, he had been a polarizing figure. A rollback of civil-rights protections; an end to affirmative action; destruction of public-employee unions; deregulation of the economy and the environment; and sharp limits on (even abolition of) popular safety-net programs like unemployment compensation, Medicaid and Medicare, and even Social Security—these things were unpopular when Reagan championed them and no more popular in 2014 than they had been during the 1980s.

      The question that loomed over the Supreme Court and its Reaganite majority was whether their hearts would lead them to write Reaganism into the law and the Constitution, finding for their leader a judicial victory in death to compensate for the complete political victory that eluded him in life. If the court took that path, then Roberts’s “stability” might be postponed indefinitely.

      Chapter 1

      Balls and Strikes

      Chief Justice John Roberts

       McCutcheon v. Federal Election Commission

      John Roberts, nominee for chief justice of the United States, appeared before the Senate Judiciary Committee from September 12 to 15, 2005. Roberts promised the senators, “I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to