The Roberts Court: The Struggle for the Constitution (11 page)

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After the executive branch’s inept response to the devastating Hurricane Katrina and the outrage surrounding the National Security Agency’s secret surveillance program, Bush had achieved a major victory in placing two solidly conservative and extremely intelligent jurists on the Supreme Court—and given their likely long tenure on that Court, he also had achieved perhaps his most important presidential legacy.

Justice Kennedy now clearly occupied the Court’s center. More conservative than O’Connor in certain areas of the law, Kennedy held the key to major shifts or to moderating views. But for all of the focus on Kennedy’s influential position in the coming terms, the real game-changer was the switch of Alito for O’Connor.

“The dramatic change came when Sandra left,” said one justice. “Every five-to-four decision the term after she left, I think would have been five-to-four the other way if she had stayed. That was the big shift in the Court. Every justice was sorry Justice [John Paul] Stevens decided to step down [in 2010], but in terms of outcomes, the big change came with Sandra leaving the Court.”

Walter Dellinger, acting solicitor general during the Clinton administration and a constitutional law scholar, agreed, saying, “People said if Anthony Kennedy were to step down it would be the mother of all confirmation battles. But actually the great shifting point on the Court came when Alito replaced O’Connor. I think the fact we had just
been through a chief justice confirmation and the fact we had just been through the nomination of Harriet Miers, it was like nomination fatigue had set in by the time Alito came along. But that was the very dramatic shift, and it has had extraordinary consequences in moving the Court.”
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Samuel Alito on the bench and Samuel Alito in chambers or in private seem to be almost two different people. On the bench, the public sees a justice who appears rather humorless, even dour. He often sits leaning forward with his chin in the palm of his hand, or “he looks like he’s watching something crawling up the wall,” noted one clerk. On the rare occasion when he does attempt some humor, it seems to have an edge. In 2010, when the justices were hearing arguments in a First Amendment challenge to a California law banning the sale of violent video games to minors, Justice Scalia was questioning one of the lawyers about the Framers’ view of the First Amendment. Alito tartly interjected, “What Justice Scalia wants to know is what James Madison thought about violent video games. Did he enjoy them?” Scalia, rarely trumped, shot back, “No, I want to know what Madison thought about violence.” Alito does not ask as many questions as some of his colleagues, but his questions are direct and incisive.

In private, however, he is awkward at first, but with a dry and hilarious sense of humor when he opens up, according to former clerks and associates; somewhat nerdy, kind and generous, someone who loves law and legal history, a judge’s judge, they say.

Despite jumping in midterm, the newest justice got up to speed quickly. It would not take long either for his colleagues to discover how Alito viewed the law. The impact of O’Connor’s departure was seen in at least two of three cases scheduled for reargument after she left. The Court had the option of ordering reargument in any case in which the justices had divided 4–4 before Alito’s arrival and also in a case where there was a majority decision but the opinion was not issued before O’Connor retired.

Based on the pattern of assignments of majority opinions, Alito’s vote appeared to have changed the prevailing majority from the Court’s
more liberal wing to its more conservative bloc in
Hudson v. Michigan
and
Garcetti v. Ceballos
. Scalia, joined by Roberts, Kennedy, Thomas, and Alito, held in
Hudson
that the Fourth Amendment’s exclusionary rule—which blocks the admission into court of illegally obtained evidence—does not apply to evidence seized by police who violate the requirement that they “knock and announce” their presence when executing a search warrant. All but Kennedy expressed obvious hostility to the exclusionary rule itself. And in
Garcetti
, Kennedy led the same justices in limiting the First Amendment protection of speech by government employees. The majority ruled that the amendment does not protect a public employee from being disciplined for speech in the course of his official duties—here a memo by an assistant prosecutor about inaccuracies in an affidavit used to obtain a search warrant in a pending criminal case.

The third reargued case was a death penalty challenge.
Kansas v. Marsh
may have originally resulted in a 4–4 split. After reargument, Thomas, joined by Roberts, Kennedy, Scalia, and Alito, upheld the constitutionality of Kansas’s law allowing the imposition of the death penalty when jurors found that factors weighing in favor of and against a death sentence were of equal weight. The Kansas Supreme Court had ruled that the state law violated the Eighth Amendment bar against cruel and unusual punishments.

The Court rarely begins a term with a full docket of cases to be argued. From October until about mid-January of each term, the justices examine petitions for review filed in the Court and add deserving cases until all of the argument slots are filled. In November 2005, the Roberts Court added what was to become the defining case of that term:
Hamdan v. Rumsfeld
—a challenge to military commissions set up by President Bush to try enemy combatants detained at Guantánamo Bay.

The justices do not grant review in cases that simply intrigue or interest them. The rules of the Supreme Court set out factors for review that are “neither controlling nor fully measuring the Court’s discretion.” There are basically three reasons. One, a federal appellate court has issued
a decision that conflicts with the decision of another federal appellate court on the same important issue, or conflicts with a decision by a state court of last resort. Two, a state court of last resort has decided an important question of federal law in a way that conflicts with another state court of last resort or a federal appellate court. And third, a state or federal appellate court has decided an important federal question that should be settled by the Supreme Court, or the decision conflicts with Supreme Court precedents.

So review basically comes down to conflicts in the lower courts on an important federal question, and issues of national importance. Winning Supreme Court review is a daunting task. The grant rate is less than 1 percent of petitions filed. During the October 2010 term, more than 8,000 cases were filed with the Court.

And the justices are not the first persons to look at the cases filed. Since 1973, the justices have used what is called the cert pool to handle newly filed petitions. The incoming petitions are divided among their chambers. Within each chamber, one law clerk is assigned to those petitions and writes a memo that summarizes and makes a recommendation on whether to grant or deny review. That memo is shared with the justices participating in the pool. The recommendation carries considerable weight and there is a tendency among the clerks to recommend denial of review.

“The clerks have it drilled into them that you want to recommend to deny cert in ninety-nine percent of the cases,” said one former clerk.

The concern that the clerks might recommend against reviewing a case that had merit motivated Justice John Paul Stevens to stay out of the pool until his retirement in 2010. In Stevens’s chambers, his four clerks would divide the 8,000 or so petitions among themselves. Stevens only wanted a memo if his clerk thought a petition might generate interest in him or another justice. If the clerk thought the petition was a possible grant, then the memo was to be one or two pages because Stevens wanted to look at the petition for himself.

The pool is particularly helpful to a new justice adjusting to the
Court’s workload. Alito joined the pool shortly after joining the Court but dropped out of the pool in 2008. The Court’s newest justices—Sonia Sotomayor, who joined the Court in 2009, and Elena Kagan, who joined in 2010—participate in the pool. With Stevens’s retirement, Alito is the only justice whose clerks review every petition.

If a petition beats the odds and review is granted, that also does not mean that review will come quickly. After a petition is filed, the opposing party has thirty days in which to file a brief in opposition to the request for review. There may be requests for extensions which sometimes are granted. And the petitioner may file a reply to the brief in opposition.

Except in May and June when the justices are no longer hearing arguments, they meet on Fridays during the term to consider the petitions. At this point, a chief justice has a certain amount of agenda-setting influence. Roberts creates the “discuss list,” a list of potential cert grants that is distributed before the conference to each of the justices who, in turn, may add to the list. The justices’ decisions on whether to grant or deny review are often released on an orders list the Monday after the Friday conference in which they have considered a particular petition.

When they filed their petitions on January 18, 2005, the parents challenging the Seattle and Louisville school assignment plans had no idea how long the process would take until the justices decided to grant or deny their requests for review.

Harry Korrell, the lawyer for the Seattle parents, was optimistic the justices would take both cases despite having quickly turned away the Lynn, Massachusetts, school challenge just a month earlier. With the two cases, the justices, he thought, could answer the constitutional question about the use of race in student assignments across a broader set of circumstances. Louisville had once been under a court order to desegregate its schools; Seattle had not.

The justices scheduled the Louisville case for their March 24 conference. The Seattle case was slightly behind because an extension of time was given for the filing of the brief in opposition. There was no word on
the Louisville case after the March 24 conference. Both cases next were taken up by the justices at their April 21 conference, but with no action on the petitions.

After that conference, there began an extraordinary relisting of the two cases for additional conferences week after week after week. The media, civil rights organizations, anti–affirmative action groups, school associations—all were watching and waiting to see what the Court would do.

“My heart was in my throat,” recalled Korrell. “I was checking the [Court’s] Web site regularly.”

The Seattle school board’s lawyer, Michael Madden, turned to Eric Schnapper, an experienced and successful civil rights advocate before the Supreme Court and a professor at the University of Washington School of Law.

“I remember calling Schnapper and saying, ‘You’ve got more experience than anyone I know. What’s going on?’ Eric’s take was, ‘I’m aware of this happening only when a justice is writing a dissent from a denial of cert.’ ”
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And that was exactly what was happening. At least two justices felt strongly that the Court should take the cases and pushed hard for review, but they did not have the necessary four votes. The Court decided to deny review, but the announcement was delayed because one justice wanted to write a dissent from the denial of review.

Justice Thomas relisted the cases multiple times in order to write that dissent. His dissent, said one justice, was powerful and, ultimately, after nearly six months of behind-the-scenes efforts, it was persuasive in capturing a third and then a critical fourth vote for taking the two cases: Justice Alito.

The Louisville case had been listed for conference seven times, and the Seattle case a total of six times. On June 5, 2006, the Court announced it would hear both cases in its October 2006 term.

While time seemed to stand still for the Seattle and Louisville parties as they waited nearly six months for the Supreme Court to act on
the petitions for review, it had moved backward in a sense in the Seattle high schools.

At predominantly white, north end Ballard High School—the oversubscribed first choice of Kathleen Brose—43.2 percent of students were minority in 2001–02 when the district dropped the race tiebreaker. By 2004–05, that number had dropped to 37 percent. And at south end Franklin High School, where 79 percent of the students were minority in 2001–02, that number had grown to 87 percent by 2004–05.
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To Brose, the numbers were not necessarily bad because, she explained, they meant more students were able to attend their neighborhood schools. To the school board, however, the numbers were sadly anticipated. They reflected what was predicted with the loss of the tiebreaker—less diversity and greater racial isolation in some schools.

The conservative justices’ votes to hear the two school cases rattled the civil rights community. There was no obvious reason for the grants of review. There was no clear conflict in the lower circuit courts; in fact, the two appellate courts in the Seattle and Louisville litigation had approved the school plans and a third appellate court approved a similar plan in the Lynn, Massachusetts, case. The school boards were acting voluntarily, not under the mandate of a law or court order, and with broad community support. And voluntary school integration efforts were not a burning issue on the nation’s agenda.

If the civil rights community was alarmed, the conservative organizations that had been fighting race-conscious actions by the government in higher education, contracting, employment, and other areas were energized and cautiously optimistic about the Court’s review. Their optimism was tempered by what they considered the “total defeat” in the University of Michigan affirmative action cases.

At 7:33 am the morning after the Court’s announcement in the Seattle and Louisville cases, Roger Clegg, president of the Center for Equal Opportunity, a non-profit, conservative organization that “promotes a color-blind society,” had posted a plan of action on National Review Online. Clegg had filed a friend of the court brief urging review in the
school cases as had Sharon Browne of the conservative Pacific Legal Foundation. He now urged supporters to do the following: marshal amicus briefs by conservative educators and businesses to counter anticipated briefs from the left supporting race-based assignments; have the Republican base make clear to the Bush administration that any brief it files must be better than the “lackluster” briefs it filed in the Michigan cases; counter expected social science claims of benefits from diversity in education; and demonstrate that “discrimination like Seattle’s and Louisville’s” is not the rule by urging briefs from school officials “who reject this nonsense.”