First Among Equals (3 page)
Consider, too, the Warren Court's two most famous cases on criminal procedure. In
Mapp v. Ohio
(1961), the Court imposed on the states the exclusionary rule, under which evidence obtained in violation of an individual's Fourth Amendment rights (against an unreasonable search or seizure) must be excluded from trial. Warren Burger, who replaced Chief Justice Warren, was eager to overrule
Mapp,
as I relate in Chapter Ten, but the five necessary votes were never there. To be sure, the more cautious Burger and Rehnquist Courts have limited the reach of the exclusionary rule, but
Mapp
itself remains the law of the land. So does the other case,
Miranda v. Arizona
(1966), in which the five-member majority, over vehement dissenting opinions, held that the Fifth Amendment privilege against compelled self-incrimination extends to custodial interrogations by police, which the Court said are inherently coercive. To ensure against coercion in this context, the majority announced its famous
Miranda
warnings. In his 1968 campaign for the presidency, Richard Nixon made the Court an issue, and
Miranda
in particular drew his wrath. But
Miranda,
while not extended in its reach, has not been jettisoned. Indeed, in 2000, Chief Justice Rehnquist, who was first appointed to the Court by Nixon, wrote the opinion upholding
Miranda
and strengthening the foundation of what had long been seen as a principal example of Warren Court excess.
Continuity can also be seen with what came to be called the “right” of privacy. In the 1965 case of
Griswold v. Connecticut,
the Warren Court held that the Constitution contained a right of privacy (though precisely where it dwelled was unclear). The occasion for the
Griswold
holding was a challenge to a state law forbidding the prescription of contraceptives to married couples. Eight years later in
Roe v. Wade,
the Burger Court, with Nixon appointee Harry Blackmun writing the opinion, used
Griswold's
right of privacy to declare a much more controversial right to abortion.
Of the decisions the Court has rendered since 1970,
Roe v. Wade
above all has the look and feel of a Warren Court ruling. The Court was subsequently asked on several occasions by Republican administrations to overrule
Roe.
I personally presented that argument—unsuccessfully—in 1992, in a case called
Planned Parenthood v. Casey.
But as with
Miranda,
a cautious Court declined to cast
Roe
aside. Ironically, three appointees of Presidents Reagan and Bush wrote the crucial opinion. So it was that the Rehnquist Court chose not to break from the Burger Court.
There would not have been as much continuity had the composition of the post-Warren Court been different. As recent confirmations have reminded the nation, it matters, fundamentally and decisively, who serves on the Court. Conversely, it matters a great deal who is not permitted to serve, whose nomination is blocked by the Senate or withdrawn prior to confirmation hearings by the president, or even who is not chosen by the president in the first place. It thus matters, deeply, how important the president and his advisers view the nomination of a justice. What purpose is the president trying to achieve with the appointment? Is he trying to shift the jurisprudential direction of the Court—a long-term goal—or is he aiming to achieve a more immediate political or public-relations goal, say by appointing the first woman? That was the choice before President Reagan in 1981, when he directed the attorney general to focus exclusively on women as prospective nominees. Left behind: the overwhelming choice of the Reagan Justice Department, Robert Bork. That presidential decision, driven entirely by political considerations, changed the course of the Court's modern history, since there is little doubt that the Republican-controlled Senate in 1981 would have confirmed Bork handily.
Likewise, the Senate's view of a president's nominee also matters. In 1987, the Democratic Senate successfully opposed Bork, the nominee for Justice Lewis F. Powell, Jr.’s seat, on grounds of ideology (or judicial philosophy). Anthony Kennedy, less conservative than Bork, was eventually appointed instead. Had Bork made it to the Court, either in 1981 or in 1987, a number of rulings would likely have gone the other way. In particular, it is very likely that
Roe v. Wade
—the Burger Court's most important decision—would have been overruled.
Today, not only does
Roe
still stand, so do the most controversial decisions of the Warren Court. Indeed, the Court today still aggressively chooses to assert power over virtually the same range of subjects as the Warren Court. It remains very much in business in the most divisive areas of our national life.
This theme is found elsewhere in the Court's work. Consider race. The Court in recent decades has not shied from the burden the Warren Court first accepted in Brown to declare what the law of equal protection is for all citizens at all levels of government. The Court, especially in recent years, has backed away from the kind of law that it countenanced during the 1980s—law, shaped by the last liberals from the Warren Court era, that allowed governments, for the sake of getting beyond racism or promoting diversity, to allocate opportunities with race in mind. Here again, the Court has proved more restrained than the Warren Court would have been. Still, what is striking in this area of the law is that the Court is willing to say no to those who deviate from the almost-colorblind law it has been expounding.
The Court has also made the same assertion in cases involving the presidency and the states. In 1974, at the height of Watergate, President Nixon asked the Court, in effect, to tell the special prosecutor to withdraw his request for the fateful White House tapes. Fourteen years later, in 1988, the Reagan administration joined in a challenge to the independent-counsel law, passed in the wake of Watergate, as an unconstitutional usurpation of presidential authority. Finally, in 1996 President Clinton asked the Supreme Court, in the Paula Jones case, to immunize a sitting president against a civil action brought against him concerning alleged conduct preceding his term of office. On all three of these occasions, the Court rebuffed a sitting president.
But the Court today is also one that regularly tells Congress no. In a series of cases in which the Court reviewed challenges to laws of Congress said to infringe upon state prerogatives, the Court invariably found those laws unconstitutional. These cases are typically seen as ones in which state authority is vindicated. But what should not be missed is that the Court time and again has proved willing to stand up to the branch of government closest to the people and treated first in the Constitution: the Congress.
Finally, the Court is also willing to tell the states no, even when state courts are interpreting state law. This, indeed, is what it did in the litigation between the two presidential candidates five weeks after the votes were counted on Election Day 2000. The Supreme Court was confronted with a state court—the Florida Supreme Court— that had made a mess of Florida election law in order to remedy perceived wrongs—or to vindicate the intent of the voters. The Rehnquist Court would not allow what it appeared to deem a runaway court to hijack a presidential election by riding roughshod over state law. That is what the Florida litigation ultimately was about.
Today's Court, then, while more restrained in doctrine than the Warren Court, reigns supreme. Still, there are pivotal differences between the Warren Court and the Court of today. The post-Warren Court, no doubt in response to the freewheeling decision-making of its predecessor, has been self-consciously struggling for greater rigor and persuasiveness in its doctrine. This is a task for lawyers, and it is striking that the only people whom the appointing presidents, starting with Nixon, have named to the Court have been lawyers working at lawyers’ jobs. Here we see a sharp break with the past. It was not uncommon before the Nixon presidency for a president to appoint to the Court a senator (consider Senator Hugo Black of Alabama, whom FDR appointed) or a governor (Earl Warren himself, appointed by Dwight Eisenhower). But every appointee since Warren E. Burger has been a person of the law, not of politics, most frequently a judge on a federal court of appeals. This is true of the only two justices appointed by a Democratic president. In 1993, President Clinton considered senators (including George Mitchell) and a sitting governor (Mario Cuomo) before settling on a judge from my old court, Ruth Bader Ginsburg. In 1994, he chose a judge from the U.S. Court of Appeals for the First Circuit in Boston, Stephen Breyer. Both Ginsburg and Breyer were highly respected as careful appellate judges.
The choice by presidents since Nixon to appoint workaday judges to our nation's highest tribunal has dramatically shaped the Court's work. It has become more and more lawyerly, another theme of this book, as the justices’ disputes over how to interpret law illustrate. Text, structure, constitutional history, and precedent (past decisions of the Court): These are the basic tools in the judicial workshop. Working with these tools of interpretation, the justices have traveled far from the wide-open approach of the Warren Court. The lawyerly rigor has only increased with time, with the occasional looseness of the Burger Court (especially on race and religion) replaced by more stringent, careful analysis. The Rehnquist Court tends to shy away from overt “balancing” of competing interests (with some key exceptions, in particular the independent-counsel case,
Morrison v. Olson
). That process, common during the Burger Court years, has the feel of policy-making, of legislating rather than judging. So, too, none of the current justices would be inclined to say, as Thurgood Marshall reportedly did when asked about his judicial philosophy, “I do what I think is right and let the law catch up to me.”
That being said, the current Court is moved by large ideas, such as equality. Some of these ideas cut across ideological and philosophical lines to a considerable degree, if only imperfectly. In watershed cases, such as
Bush v. Gore,
the justices seek common philosophical ground, identified at a high level of generality—say, all voters should be treated equally, just as all speakers should likewise be so treated. Or, as a corollary to equality, aid to faith-based institutions should be upheld if the governmental program is widely available on a neutral, nondiscriminatory basis. Large principles, in short, can bring surprising results in their application. So, too, the principle of individual conscience looms large, drawing together a solid majority (although not all) of the justices in the sensitive arena of school prayer or other religious observances in public schools, just as it protects flag burning as a form of free expression. At other times, the Court has invoked the grand traditions of “restraint,” the principle that un-elected courts should be highly deferential to the judgments of the political branches.
These big ideas both animate the Court and serve as ammunition for justices who find themselves outvoted and thus relegated to preparing a dissenting opinion. For example, in two important areas, federalism and the 2000 presidential election case, “restraint” has been the rallying cry for dissenting justices upset by the Court's invalidating congressional regulation of state interests (federalism) or its overturning the Florida Supreme Court's second decision in the epic
Bush v. Gore
struggle.
So this is the Court today: It is a judge's Court, a Court of lawyers. A Court where history, which Henry Ford once dismissed as “bunk,” is treated with genuine respect. A Court dedicated to stability, not change; moderation and incrementalism, not liberalism or progressivism. The Rehnquist Court's stability has been especially evident in its dedication to the principle of
stare decisis
—the doctrine that courts should follow earlier judicial decisions, even if the prior holdings are viewed as wrongly decided. At the same time, it is a Court moved by large, unifying ideas. And a Court that, while remote from the hustle and bustle of American life, remains engaged in virtually all areas of our national life. It is, as
Bush v. Gore
demonstrated, first among equals, the branch of government with the authoritative role in vital issues that deeply affect American life and politics.
The Supreme Court
Then and Now
O
RIGINS
T
HE
C
ONSTITUTION
C
REATES THE
S
UPREME
C
OURT
. Other federal courts may come and go, in Congress's discretion, but only the Supreme Court is ordained in the founding document itself. Even so, the early years of the Supreme Court were not busy ones. John Jay, the first chief justice, took time away from his duties to negotiate the much-despised Jay Treaty with England. When he returned home, Jay resigned from the Court to accept the post of governor of his native New York. The second chief justice, Oliver Ellsworth, was soon bored. He stepped aside in 1800 only weeks after Thomas Jefferson was elected president.
Jefferson's triumph over John Adams brought about a seismic shift in national politics—a political revolution, as the new president saw it. During the nation's first twelve years, battles had been fought over the enduring question of the power of the federal government as opposed to that of the states. Throughout his eight years as president, George Washington remained above the fray, but below — in the trenches of cabinet-level disputes—the struggle between competing visions of national versus state power had been fierce. Alexander Hamilton, the first secretary of the treasury, led the pro-nationalist forces. In Hamilton's view, the central government should be strong, active, energetic, moving ahead with programs to build the young nation. Hamilton pressed successfully for the establishment of a Bank of the United States, an institution he thought necessary for the nation's economic development but that was destined to be challenged in court early in the nineteenth century. For his part, the president—in Hamilton's vision—needed to be energetic, showing strong leadership in promoting a sense of genuine nationhood throughout the country. The people should look to the national capital, first New York, then Philadelphia, and finally the new city of Washington, D.C., for the establishment of policies and institutions that would enable the country to thrive.