The Right Stuff

, The American Lawyer

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.

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