Welcome, Marcia. Thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your book.
Question:
This is your first book and you had the honor of having Alice Mayhew – the senior editor at Simon & Schuster who was the editor for the likes of Jonathan Alter, Harold Holzer, Doris Kearns Goodwin, Walter Isaacson, and Bob Woodward, among others – as your editor. Tell us about that experience and how this book came about.
Answer:
Alice Mayhew contacted me during the confirmation hearings for Justice Kagan. She said she was interested in a book about the Court and invited me to New York to speak with her and the publisher, Jon Karp, about it. I knew of her reputation and I was intrigued and somewhat in awe. That fall, I went to New York and met with her and Karp. She had a framework in mind for the book: to examine the Court through the lens of three signature decisions. I had given that structure some thought and suggested three decisions that I thought might work. If I was going to do this, I didn’t want to write a book just for the legal community, but a book for anyone with an interest in the Court. I wanted it to be accessible and a “good read” if I were to undertake it, and so did they. After about a half hour, Jon Karp said, “Let’s do it,” and that was it. My editor at The National Law Journal was completely supportive of the project.
Alice Mayhew never wavered in her confidence that I could do the book even though, as I reminded her that day, I had never written one. She was always available to give advice and to nudge me forward, but she never was intrusive and has great respect for the writing process. She also has tremendous curiosity and love for history and politics, which makes it fun to work with her. As soon as we had agreed on the book, I was put on her book list and started receiving copies of books she was editing. Into my office came Jobs by Walter Isaacson, Barack Obama: The Story, by David Maraniss, and on and on. I’d sit at my desk and ask myself, “What in the world am I doing?” In the end, I could not have had a more supportive and kinder team than Alice’s team at Simon & Schuster.
Question:
In what basic way does your book differ from that of Jan Crawford’s Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (2008) and Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court (2008)? Of course, those books were released almost five years ago. But apart from that, is there any fundamental difference between your book and those?
Answer:
Yes, there is. From the beginning, I wanted to tell the back stories of how the three cases (eventually four after the Court granted review in the health care challenge) came to the Supreme Court. Many books about the Court focus on the nomination/confirmation process (a major part of Jan’s book) or on actions within the Court itself (Toobin’s book). We in the media scratch the surface of the back stories in previews of cases before arguments. But I hoped to show readers not only the main people in these cases but the hard work and strategy that their lawyers put into moving the cases forward.
I picked the cases that I did for four reasons: I wanted signature or landmark decisions, decisions that likely had shelf life, perhaps spawning future litigation; five-four decisions, not to show the Court as always divided ideologically, but because those decisions often reveal the most about how the Justices approach interpreting laws and the Constitution. I also sought decisions, obviously, with interesting back stories, and finally, decisions that people cared about and would want to learn more about how the cases got to the Court and what happened once there. The health care case was added late in the book process and my only regret is there was not more time between the decision and my deadline to examine what happened inside the Court. The Justices and former clerks seem to find it easier to talk about cases when time has eased controversy.
Another difference, I hope, is that my book does not have a partisan viewpoint. David Garrow, whose frank opinions I’ve always valued, called the book “a nonpartisan account” after reading it (and he did read it). Jeffrey Toobin, in particular, has a strong political viewpoint. I tried very hard to do what I try to do in my coverage of the Court, either for The National Law Journal or for PBS’s NewsHour, and that is to show that these cases present difficult questions and reasonable minds can differ on their outcomes. I quoted Justice David Souter in my introduction when he said that people have to judge for themselves based on what the Justices write whether they believe the majority made the right decision. I hope the book offers readers a more nuanced view of the work of the Court and the Justices themselves.
Question:
You describe one wing of the Court as “a confident conservative majority with a muscular sense of power.” You explain this characterization based on this group’s “boldly raising questions not asked,” its refusal to “defer” to local or national officials, and its “overruling of precedents.” At least insofar controversial cases are concerned, do you see such “muscular use of power” to be one of the defining characteristics of the Roberts Court?
Answer:
I stress in the book that the Roberts Court is still a “young” Court in some ways. Professor A.E. Dick Howard has said it takes about nine years for a “new” Supreme Court’s identity to emerge, and even then there are always surprises. I do think, despite the “newness” of some of the Justices, the Roberts Court’s conservative majority has shown itself to be very confident and willing to deliver a “jolt” to the legal system even when there are more restrained ways to rule. Whether this will be a defining characteristic, well, let’s see what the end of the Term brings.
Question:
You portray the other wing of the Court as the “moderate-liberal” wing. By that do you mean to suggest that so-called traditional “liberal” Justices – say, the likes of Earl Warren, Abe Fortas, William O. Douglas, Arthur Goldberg, and William Brennan – no longer exist on the Court? Or put another way, that there is no longer a truly “liberal” bloc of Justices on the Roberts Court?
Answer:
I’m sure there will be people who disagree, but the answer is “yes.” I recall a line in Bernard Schwartz’s book, Decision: How the Supreme Court Decides Cases. After the departure of Justices William Brennan, Jr., and Thurgood Marshall, he wrote, “No one thunders, no one roars.” I do believe, as Justice John Paul Stevens has said, it is only because the Court has moved more to the right that he would be viewed as a liberal.
Question:
There is a quote in your book from “another justice,” with no clear attribution and no endnote reference. The quote is: “The results are what the results are, but this idea that there’s one bloc or two blocs is just not the way we do it.” You have that same Justice saying that the conservative-liberal divide “is not the way we approach an individual case.” In light of what you say in your book, is it fair to assume that you disagree with that assertion?
Answer:
No. This Justice was explaining how the Justices approach cases. This Justice believes all of the Justices essentially do the same thing: they read the lower court record, read the briefs, listen to arguments, examine precedents. They do not start the process by thinking, “I’m a conservative or a Republican or a Democrat or liberal, so the answer must be X or Y.” From my interviews with them, I do believe they do not approach individual cases in that way. The results, as the Justice said, are what they are. And I think that is because, as Justice Antonin Scalia has said, they would not have been appointed by the presidents who chose them if they did not have something in common with those presidents’ ideological views. We are naïve to think otherwise.
I believe each Justice is the sum total of his or her experiences in life and in the law. They bring those experiences to bear on the cases before them. Their personal biases are checked by certain doctrines such as stare decisis, and some adhere to those doctrines more than others. I’d contrast my view, for example, with Toobin’s view of Chief Justice John Roberts in Citizens United. Toobin wrote in an article that Roberts was faced with a decision: how much did he want to help Republicans? The answer: a lot. I don’t believe partisan politics motivated Chief Justice Roberts in Citizens United and I think his concurrence, devoted to stare decisis, was his way of explaining why he reached the decision he did. The Justices interviewed also all said that Deputy Solicitor General Malcolm Stewart’s concession that certain books could be banned had nothing to do with the decision to reargue the case. It was clear to those of us who followed the Court’s campaign finance rulings where the Court was headed for some time in this area of the law.
Question:
You note that some of the Roberts Court’s landmark rulings had “their inception” in the work product of a “very smart and talented” group of “conservative or libertarian lawyers.” If you had to list four such lawyers who you think are helping the Roberts Court to move in an overtly “conservative” direction, who would those lawyers be?
Answer:
In the context of my book and actual litigators, Jim Bopp has labored long and successfully at deregulating campaign money and has another case next Term; Michael Carvin of Jones Day; on the libertarian side, Randy Barnett in general, as well as the lawyers at the Institute for Justice on property rights, and the Pacific Legal Foundation. Some people might point to Paul Clement because of his representation in key conservative cases, such as health care and same-sex marriage, but I’m not sure he is as agenda-minded as some of the other lawyers mentioned here and in my book.
There are, of course, many conservative, repeat players as amicus in the Supreme Court on a whole range of issues: John Eastman of the Center for Constitutional Jurisprudence; Richard Samp of the Washington Legal Foundation, and Liberty Counsel, among others.
I would also keep an eye on Alan Gura. He is doing cutting-edge work in Second Amendment litigation and his victories in Heller and McDonald likely are not the last we will see of him.
Question:
In your endnote references I see that you conducted a personal interview with Justice Antonin Scalia in July 2011. How did that come about? Was any of it on the record?
Answer:
I requested an interview with Justice Scalia specifically for my book and he agreed. He subsequently graciously allowed me to put certain portions of the interview on the record. The on-the-record portions are noted in the endnotes.
Question:
There is also an endnote reference that states: “Author’s interview with Justices. June 2011-July 2012.” Can you tell us the number of Justices you personally interviewed? And how many were not sitting Justices?
Answer:
I interviewed six Justices and based on the terms set by the Justices, that is all I will say. I know we all love to try to guess who said what. I will say that it is very frustrating to do interviews with the Justices off the record or on background, but, of course, it is better than nothing at all. It is frustrating because so much of what each one says truly does reflect well on that Justice as well as on the Court as a whole.
Question:
There is one other endnote attribution to a July-August 2012 interview with the “Obama Administration.” Since you also refer to another interview with “Department of Justice lawyers,” the former reference was not to them. Can you say more about that? Can you tell us if you interviewed anyone affiliated with the White House Counsel’s Office?
Answer:
I interviewed current and former Administration and Justice Department officials associated with the four cases covered.
Question:
Your description of the behind the scenes wrangling in the District of Columbia v. Heller (2008) case was quite fascinating, especially the interactions between the Attorney General (Michael Mukasey), the Solicitor General (Paul Clement), and the White House (particularly Vice President Cheney). What do you think prompted General Clement to argue for a more moderate position (intermediate scrutiny) as opposed to the more demanding one urged by Mr. Cheney and others?
Answer:
The Justice Department had been struggling with the Ashcroft memo since its inception. Discussions about what the government’s brief in Heller should say were still underway even as the deadline approached for filing it. The challenge, according to lawyers in the department and the Solicitor General’s office, was to state a position consistent with the administration’s policy – the Second Amendment guaranteed an individual right– and yet served the interests of the department – to prevent the unraveling of federal gun laws. The latter concern about what could happen to federal enforcement of gun laws prompted the more moderate position on scrutiny. General Mukasey ultimately told Solicitor General Paul Clement to file the brief that he thought best represented the interests of the United States.
Question:
You have Justice Scalia saying that the assignment of the Heller majority opinion to him was a major “vindication of originalism.” Given that, how strong do you think the originalism “movement” is in the Roberts Court? For example, do you think the Chief Justice and Justice Samuel Alito are “originalists” in the same basic way that Justice Scalia and Justice Clarence Thomas are?
Answer:
Justice Antonin Scalia deserves much credit for making originalism a force to be reckoned with on the Court. He and Justice Clarence Thomas, however, are the only reliable originalists on the bench. The Chief Justice and Justice Samuel Alito, I believe, are more pragmatic in general in their approaches. All of the Justices interviewed considered themselves originalists to some degree, but, unlike Justices Scalia and Thomas, they do not believe that always provides the answer.
Question:
Concerning race and Justice Anthony Kennedy’s voting record, you write: “Kennedy has written forcefully against the use of racial classifications in cases involving affirmative action, voting rights, and reverse discrimination. In fact, he has never voted to uphold an affirmative action plan. But Kennedy, say his former law clerks and others, is an idealist, and [thus has] somewhat more moderate views . . . .” Though he revealed little in oral arguments in Fisher v. University of Texas, what is your sense of what he might do, and do you see him writing a majority opinion, assuming there is one?
Answer:
I think he will write the Fisher opinion and the Chief Justice will write the voting rights decision. Kennedy’s former clerks’ views of him as an idealist is the reason they believe that even though he doesn’t vote for race-based plans, he never says never. As he said in Parents Involved, a color-blind Constitution is still an aspiration. But I think Fisher may be easier for him to decide on a narrow basis because of Texas’s Top Ten Percent Plan.
Question:
Several times you refer to the majority ruling in Citizens United v. Federal Election Commission (2010) as an “aggressive” rule or as one of the “most aggressive decisions yet of the Conservative Court.” By stark contrast, others such as Floyd Abrams (in his new book Friend of the Court) and Michael McConnell (in a forthcoming Yale Law Journal article) view the matter quite differently. In his Yale article, for example, Professor McConnell argues that “long-established principles of the First Amendment – and particularly freedom of the press – strongly support the conclusion that the organization called Citizens United had the constitutional right to prepare and disseminate a documentary critical of a public official and candidate, even during the election season.” What in your view makes the Citizens United ruling “aggressive”? Was it simply that the majority did not resolve the case on statutory grounds, or did you find its First Amendment holding “aggressive” as well?
Answer:
I have tremendous respect for Floyd Abrams. He is a hero to many of us in the media and I’m not surprised at all at his view of the case. He is a true champion of the First Amendment. I do think Citizens United was an aggressive decision. Citizens United had abandoned its facial challenge to the relevant provisions in the lower court so there was no record. The majority was ready to issue a decision overruling Austin and the provision in McCain-Feingold without briefing or argument, and there were narrower grounds on which to rule, alternatives offered even in Citizens United’s brief. Calling the decision aggressive does not necessarily mean that I thought it was wrong.
Question:
Do you have any plans for a future book? Have you contracted for one?
Answer:
No and no. Have any good ideas?
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