The Right Stuff
If cameras were allowed in the U.S. Supreme Court, it would have been a Kodak moment. As it was, few spectators were on hand for the first oral argument on the morning of April 14, 2008.
The question before the justices: Do tribal courts have jurisdiction over a dispute between a nontribal bank and an Indian-owned corporation? Halfway into the hearing, Chief Justice John Roberts, Jr., leaned forward to say he was trying to understand the concept of an "Indian corporation." With a faint smile he nodded toward his colleagues on the bench. "If Justices Scalia and Alito form a corporation," he asked, "is that an Italian corporation?" Antonin Scalia and Samuel Alito, Jr., laughed heartily, even though Scalia makes a point of tell-ing people he is Italian American, not Italian. "Do we get personal loan guarantees?" asked Scalia, going along with the joke.
It was a brief interlude, but it displayed the easy, confident style of the new chief justice and the comfortable camaraderie of the Court's reconstituted conservative wing. Conservative justice Clarence Thomas was smiling too. Two months later, those four and Justice Anthony Kennedy ruled 5 to 4 against the tribe and for the bank.
Most Court commentators believe that conservatives are finally riding high in the saddle at the Supreme Court-and enjoying it. Increasingly, their ascendancy is being viewed, as author Jef-frey Toobin puts it, as President George W. Bush's "most enduring triumph." In 2007 in The New York Times, Linda Greenhouse, now retired from the beat, wrote that it is "the Supreme Court that conservatives had long yearned for and that liberals feared." NPR's Nina Totenberg chimed in that conservatives "seem to have reached the promised land."
Yet, without being churlish, it is fair to wonder whether the Court has gotten all the way to con-servative nirvana. A new law review study of the Roberts Court's decisions concludes, in a play on Greenhouse's 2007 assessment, that "conservatives should continue to yearn, and liberals should not fear." From the viewpoint of business litigants, says Supreme Court expert Carter Phillips of Sidley Austin, "if the world had truly changed, employers would have won a lot more cases than they did last term." Adds Mayer Brown's Dan Himmelfarb: "Moderate conservatives being replaced by pragmatic conservatives hasn't made much difference in most cases."
The coming months will bring new tests of just how far to the right Bush has turned the Court. A crucial drug safety case, Wyeth v. Levine, is set for argument November 3, asking whether federal drug-labeling law preempts state product liability tort actions [see "Preemptive Strike," page 52]. Will the Roberts Court heed the strong call of business to favor federal preemption over unruly state court litigation? In Herring v. United States, argued October 7, the Roberts Court gets its first chance to take on a longtime law-and-order bugaboo: the exclusionary rule, which bars illegally obtained evidence from use at trial. Conservative results are likely-but not certain-in both cases.
And then, of course, there is the election, which will determine if the changes that Bush began on the Supreme Court gain momentum or stop in their tracks, halted by the prospect of a President Barack Obama appointing-or even just a Democrat-dominated Senate confirming-the next Supreme Court nominees. Few dispute that Bush's campaign to move the Court to the right was a deliberate journey, launched by Federalist Society Republicans who had been awaiting their chance for decades. But serendipity and lucky moments of history helped enormously to create the Roberts Court. If key events had broken differently, the Supreme Court might have been added to the list of unconsummated Bush administration projects, right next to Social Security reform and energy independence.
As one former top U.S. Department of Justice official put it, "Roberts and Alito were inspired picks, but I don't think anyone should ever forget who his second choice was." Even the proudest architects of the Bush Supreme Court legacy wince at the memory of Harriet Miers.
The administration's obsession with Supreme Court appointments began even before Bush was elected in 2000. In 1999 Bush invited conservative lawyers-among them, Reagan attorney gen-eral Edwin Meese-to Austin for meetings to discuss judicial selection, says conservative lawyer Leonard Leo, an informal adviser on the subject from that point on. "There was a sensitivity that judicial selection was a very tricky business," Leo recalls, and there was a desire to get started early. As a son of the first President Bush, George W. Bush had seen and felt the disappointment (David Souter), the agony (Clarence Thomas), and the success (again, Thomas), that the power to appoint justices could bring.
Then came the 2000 election itself, producing a baptism by fire called Bush v. Gore. The ordeal left an unavoidable, black-robed birthmark on the Bush administration, a profound reminder that the Supreme Court matters. When Bush was inaugurated, "we prepared from day one," according to one top staffer. The goal was to prevent a mystery candidate like David Souter from sneaking to the front of the line. While some administrations task the Justice Department with judicial selection, Leo says, "it was flipped in this Bush administration" to the White House counsel's office, then headed by Alberto Gonzales. "That's where the president had his closest friends," Leo adds.
The list of potential Supreme Court nominees that emerged from the counsel's office was heavy with Texans and a fair sprinkling of Hispanics [see "The Short List," page 67]. Roberts, then in private practice, was not on the list, and neither was Miers. But Alito, a solid conservative on the U.S. Court of Appeals for the Third Circuit, was. And as the years went by without vacancies, both Alito and Fourth Circuit judge J. Michael Luttig emerged as front-runners, according to another former senior official who requested anonymity.
The passage of time also helped Roberts. He'd been nominated to the U.S. Court of Appeals for the D.C. Circuit, and began serving in June 2003. By 2005 he had enough judicial heft that his biggest fan, deputy White House counsel David Leitch (now vice president and general counsel of Ford Motor Company), could push him for the Supreme Court.
What the administration was seeking, according to interviews with participants, was a mix of ideology and excellence. The goal was to find impeccable Supreme Court nominees whose talents and intellect were so unimpeachable that their strongly conservative stripes would not defeat them. "The conversation isn't, ‘He'll vote right on abortion,' " says Leo, "because conservatives have learned you can play that game all you want and you'll still have a 50 percent chance of being wrong." Instead, the "cafeteria talk," Leo continues, was, "Do you hit a home run, or just trade up?" Leo defines "trading up" disdainfully as appointing someone who is only a notch more con-servative than his or her predecessor; depending on which justice was being replaced, that could be only a timid step to the right. In 2005 Leo took a leave of absence from his job as executive vice president of the Federalist Society to serve as one of the president's key advisers on high court nominations. By then, Leo says, the debate over what kind of nominees should be sought was over. "It was all about hitting home runs," he said, rather than appointing "85-percenters."
So the stage was set in the summer of 2005, when Justice Sandra Day O'Connor stunned Washington by announcing July 1 that she would retire when her successor was confirmed. The White House was ready for a vacancy-though staffers had expected they would be looking for a replacement for Rehnquist, who was suffering from a virulent form of thyroid cancer. Conservative activists were ready, too, and they quickly snuffed out Gonzales's chances to be named. " ‘Gonzales' is Spanish for ‘Souter,' " was one fatal slogan. Roberts became Bush's nominee to replace O'Connor.
Then Rehnquist died, just before Roberts's confirmation hearings were to begin. Faced suddenly with the task of replacing Rehnquist, Bush no longer felt the need to start from scratch; he had his man right in front of him. Roberts had benefited from the summer of scrutiny, and with Hur-ricane Katrina devastating the Gulf Coast at the same time, Bush wanted to move fast. Naming Roberts to the Court's center chair two days after Rehnquist's death, Bush said that, after getting to know Roberts, Americans and the Senate "like what they see."
The discipline broke down when Bush had to find someone else to replace O'Connor. The president was under pressure to nominate a woman, but for whatever reason, insiders say the vetted list contained few "home run" candidates who were female. So Bush looked elsewhere and settled, fatefully, on Harriet Miers, his White House counsel. "I know the president felt she was a quality candidate," Leo says. "In his own heart, he was not compromising." But in little more than three weeks, she was gone-a victim of conservative outrage that she would be a moderate mistake worse than Souter, and with fewer credentials than Souter.
Even before Miers withdrew, it appears, Bush had decided on her replacement: Samuel Alito. During earlier interviews, Bush had liked Alito more than Luttig, says Toobin in his book The Nine. And the line on Alito among White House lawyers was that in his 15 years on the Third Circuit-he'd been appointed by Bush's father-Alito had never written a wrong opinion.
The dramatic chronology was crucial to the almost accidental success of Bush's Supreme Court nominations. If the cards had been dealt in a different order, Roberts might not be chief justice at all. If Rehnquist had retired before 2005, as many expected, either of the more experienced Fourth Circuit judges--J. Michael Luttig or J. Harvie Wilkinson III-probably would have been picked to replace him. And if Rehnquist had retired in 2005, as was widely expected, or passed away earlier, O'Connor would have stayed on at least one more term, to avoid a double vacancy. By 2006 her husband's Alzheimer's disease, the reason she wanted to leave, had deteriorated to the point where he could not be cared for at home; O'Connor might never have stepped down at all. Conservatives would have had a lot less legacy to boast about.
But Roberts and Alito did make it to the Court. The first full term of the Roberts Court brought enough conservative victories that the story line of "a Court transformed" was set. The Roberts majority upheld the federal law banning partial-birth abortion, frowned on the use of race as a factor in public school class assignments, and told women that they were out of luck if they com-plained about pay disparity when they first realized it was happening-rather than years earlier, when their salaries were set.
The victories, however, came at a cost. Nerves were raw inside the Court, and reports circulated that Roberts was sometimes dismissive at conference. Justices Ruth Bader Ginsburg and Stephen Breyer read dissents from the bench, a rarity. Breyer, dispirited and exhausted by June, went off-script when he recited his dissent in the school race case. "It is not often in the law," he said mournfully, "that so few have so quickly changed so much." Roberts's stated goal of greater unanimity did not get off to a great start.
Then came 2008. The Court seemed a happier place, and the numbers proved it: only 11 5-to-4 decisions, compared to 23 the term before. Seemingly chastened by the rancor of the preceding term, the Court worked harder to bond. To be sure, the Court's conservative course continued, most dramatically with a landmark victory for gun rights. Writing on a virtually clean slate, the Court in District of Columbia v. Heller said the Second Amendment protects an individual right to bear arms. But Justice Antonin Scalia tempered the judgment-was he also trying to get along?-by acknowledging that some restrictions on the right were permissible.
And in a conservative paradise, the Court would not have expanded habeas rights for Guantánamo detainees as it did in Boumediene v. Bush, nor would it have declared yet another category of defendants-child rapists whose victims survive-immune from the death penalty, as it did in Kennedy v. Louisiana. The Court pleased the business community by slashing the punitive damages stemming from the Exxon Valdez oil spill in Exxon Shipping Co. v. Baker, but it was in the context of maritime law. Sidley's Phillips says, "I still can't count to five [votes] on any particular view of punitive damages." Employment discrimination cases also went against employers, by and large. But recent precedents seemed to demand that the Court decide that way, says Phillips: "They tend to take precedent pretty seriously."
These liberal detours were enough to give legitimacy to that contrarian Tulsa Law Review article, coauthored by Northwestern University political scientist Lee Epstein, who has spent her career charting Supreme Court trends. "It seems clear to us," says Epstein, "that reports of the sea change generated by O'Connor's departure and the onset of the Roberts era are overwrought at best and mistaken at worst."
To be sure, many scholars and practitioners continue to talk about a Court that has lurched to the right-as conservative as it could be while Anthony Kennedy is still one of the nine. "President Bush and conservatives generally couldn't possibly have hoped to achieve more with the Supreme Court," says Akin Gump Strauss Hauer & Feld's Thomas Goldstein. "If Bush had cloned Scalia twice, he still could not have moved the Court to the right of Kennedy," adds Cornell Law School's Michael Dorf, a former Kennedy clerk. Kennedy replaced O'Connor as the swing vote, and when he tacked to the left, so did the Court. The occasional liberal ruling should not distract anyone from the reality of the Court's transformation, says Kathryn Kolbert, new president of People for the American Way. "We had a victory in the Guantánamo case," says Kolbert. "But it was only 5-to-4, and that's an abomination. Habeas is our most cherished right. It should have been 9-to-0."
It's been less than three years since the Roberts Court came into being--not enough time to con-clude definitively whether the Bush campaign to change the Supreme Court has been a success. The cases that will test the Roberts Court on abortion, race, gay rights, and religious freedom are not yet on the docket-although they are certain to appear before long. How they are framed-obeisant to precedent or staking out new ground-may make all the difference. If even Scalia feels compelled to list ways in which the right to bear arms can be regulated, as he did in District of Columbia v. Heller, then incrementalism may still be the Court's style for years to come. The mantra from liberals for the last four elections, at least, has been that the Supreme Court is "one vote away" from overturning cherished precedents like Roe v. Wade. After eight long years of the Bush administration, Dorf notes that on issues such as race, abortion, and gay rights, "things have moved considerably. But we are still one vote away."
The Short List
Early in President George W. Bush's first term, the names of potential U.S. Supreme Court nominees circulated internally in the administration. The list, provided by a top former Bush administration lawyer, originated from the office of then-White House counsel Alberto Gonzales. The chart lists the position held by each nominee at the time.
Samuel Alito, Jr., judge, U.S. Court of Appeals for the Third Circuit.
Rhesa Barksdale, judge, U.S. Court of Appeals for the Fifth Circuit.
William Barr, general counsel, Verizon Communications Inc.
Danny Boggs, judge, U.S. Court of Appeals for the Sixth Circuit.
Janice Rogers Brown, associate justice, California Supreme Court.
Edward Carnes, judge, U.S. Court of Appeals for the Eleventh Circuit.
Frank Easterbrook, judge, U.S. Court of Appeals for the Seventh Circuit.
Miguel Estrada, partner, Gibson, Dunn & Crutcher.
Emilio Garza, judge, U.S. Court of Appeals for the Fifth Circuit.
Mary Ann Glendon, professor, Harvard Law School.
Raul Gonzalez, Jr., of counsel, Locke, Liddell & Sapp
Orrin Hatch, U.S. senator.
Ricardo Hinojosa, judge, U.S. District Court for the Southern District of Texas.
Edith Jones, judge, U.S. Court of Appeals for the Fifth Circuit.
Alex Kozinski, judge, U.S. Court of Appeals for the Ninth Circuit.
J. Michael Luttig, judge, U.S. Court of Appeals for the Fourth Circuit.
Michael Mcconnell, judge, U.S. Court of Appeals for the Tenth Circuit.
A. Raymond Randolph, judge, U.S. Court of Appeals for the D.C. Circuit.
Jerry Smith, judge, U.S. Court of Appeals for the Fifth Circuit.
J. Harvie Wilkinson III, judge, U.S. Court of Appeals for the Fourth Circuit.
Karen Williams, judge, U.S. Court of Appeals for the Fourth Circuit.