The Roberts Court: The Struggle for the Constitution (54 page)

The U.S. Supreme Court is one of the best and one of the strangest beats for a journalist. It is one of the best because there is constant variety in the cases that the justices hear and constant challenges in understanding the legal issues at the core of those cases. Behind even the dullest or most complex tax or ERISA case there often is a very human story waiting to be told. And the Supreme Court correspondent gets a number of opportunities as well to be a witness to history from Senate confirmation hearings to decisions that dramatically affect the nation.

The beat is also one of the strangest for a reporter because there is so little direct contact with the primary sources of the news—the justices. The reporter cannot call up the justice who wrote a majority opinion and ask, “Now what exactly did you mean by the fourth paragraph on page twenty-seven of your opinion?” The justices are notoriously, and unfortunately, reluctant to grant on-the-record interviews. Supreme Court reporters learn about the Court and the justices themselves through the justices’ opinions and by observing them during oral arguments.

We also look to some of the brightest and most dedicated lawyers and law professors across the political spectrum who have spent years practicing before the Court and studying their decisions and the development of the law. As a reporter for
The National Law Journal
, I have benefited tremendously over the years in my work in general and in this book in particular from their willingness to give generously of their time and knowledge. There are too many to mention by name. I owe much to Rick Hasen of the University of California Irvine School of Law and Brad Smith of Capital University Law School for always responding to
questions about campaign finance laws. Walter Dellinger of O’Melveny & Myers and Ted Olson of Gibson, Dunn & Crutcher, two of the busiest and finest appellate court practitioners, have shared their expertise with me not just for this book but for countless articles that I have written in the last twenty-five years, and I am truly grateful because there is always something new to learn about the Supreme Court, and they are superb teachers.

I owe a special thanks to Paul Smith of Jenner & Block and Greg Garre of Latham & Watkins. Both men head their firm’s Supreme Court and appellate practices. They shared their experiences as practitioners and “students” of the Court during the early stages of this book and gave me invaluable context as I started on this journey.

This book simply would not have been possible without the support of David Brown, the editor in chief of
The National Law Journal
. From day one, he backed the project, juggled my schedule, exuded confidence in me, listened and offered suggestions when I got stuck in the writing, and made the impossible possible. “Thank you” just doesn’t seem enough, David, but it is heartfelt. My colleague, Tony Mauro, generously bore more than his share of our newspaper duties when I took time to write. Without his willingness to do so, my task would have been much harder. I hope to return the favor some day. Another longtime colleague, Joan Biskupic, author of two books, one on Justice Sandra Day O’Connor and the other on Justice Antonin Scalia, was a valuable sounding board, offering advice when asked and encouragement when needed.

My cousin Paula Russo gave up many of her summer evenings to reading draft chapters. What a trouper! She gave excellent, detailed suggestions for clarifying legalese and explanations of decisions. Her input was invaluable and I am indebted to her. Thanks also go to Doug Kmiec of Pepperdine University School of Law for being a reader when I asked.

The entire team at Simon & Schuster impressed me from the beginning with their professionalism and commitment. The publisher,
Jonathan Karp, and my editor, Alice Mayhew, never wavered in their enthusiasm for the project. Before meeting her, I had heard of Alice Mayhew’s reputation as one of the best editors in publishing. It was an honor to work with her and I was humbled by her confidence in and patience with a first-time book writer. Her assistant, Jonathan Cox, kept me on schedule, handled many details associated with producing a book, and always answered my questions swiftly and thoroughly. I could not have had better support throughout the process. My agent, Rafe Sagalyn, was my window into this new world of book publishing and provided sage advice and support. He was never intrusive but I always knew he was there if and when needed.

I also am very grateful to my entire family, not just my immediate family, for their interest and support along the way. No one could ask for better cheerleaders. My most indefatigable cheerleader, my mother, died shortly before the book was finished, and with her death went the certainty of at least one glowing review, and so much more.

Finally, this book is for the many people who have written to and e-mailed me over the years, often after my appearances on
PBS News-Hour
, because they were eager to know more about this institution that is so critical a player in our democracy. The late Justice Harry Blackmun, after being interviewed on C-SPAN many years ago, told me that he did not think the Supreme Court should be a great mystery to the American people. I hope this book makes it less mysterious to all who read it.

© DIEGO M. RADZINSCHI/NATIONAL LAW JOURNAL

MARCIA COYLE
is the chief Washington correspondent for
The National Law Journal
. As a lawyer and journalist, Coyle has covered the Supreme Court for twenty-five years. She regularly appears on the
PBS NewsHour
. She has earned numerous national journalism awards, including the George Polk Award for legal reporting.

FOR MORE ON THIS AUTHOR:
Authors.SimonandSchuster.com/Marcia-Coyle

MEET THE AUTHORS, WATCH VIDEOS AND MORE AT

SimonandSchuster.com

The author conducted interviews with current and retired justices and former clerks from June 2011 through July 2012. Those interviews were on background, meaning that their comments could be used but without their names. In certain instances, Justices Antonin Scalia and John Paul Stevens agreed to have portions of their interviews on the record.

1
. H. Jefferson Powell,
A Community Built on Words: The Constitution in History and Politics
. University of Chicago Press, 2002, rev. ed. 2005, p. 6.

2
. Morgan Smith, “One Man Standing Against Race-Based Laws,”
Texas Tribune
(republished in
New York Times
, Feb. 23, 2012).

3
. Greg Stohr, “Roberts Supreme Court’s Partisan Split Shows New Justices Are Predictable,” Bloomberg News, quoting Barbara Perry of University of Virginia’s Miller Center of Public Affairs, July 1, 2011.

4
. Joan Biskupic, “Justice Ginsburg Reflects on Term, Leadership Roles,”
USA Today
, July 2, 2011.

5
. Author interview with Theodore Olson, July 2011.

6
. Jack Balkin, “High Politics and Judicial Decisionmaking,” Balkinization, May 4, 2003.

7
. Associate Justice Antonin Scalia,
Fox News Sunday
, July 29, 2012.

8
. Associate Justice Stephen G. Breyer, “The Work of the Supreme Court,”
Amer. Acad. of Arts & Sci
., September–October 1998, p. 47.

9
. “A Conversation with David Souter: How Does the Constitution Keep Up with the Times?” New Hampshire Supreme Court Society, Sept. 14, 2012.

1
. Author telephone interview with James Ho, former clerk to Justice Clarence Thomas, September 2011.

2
. “Gold Stripes: Chief Justice Rehnquist’s Final Interview,” NBC News, Sept. 4, 2005.

3
. Author’s interview with Justice Antonin Scalia, July 2011.

4
. Author’s interviews with justices, June 2011–July 2012.

5
. Alex Markel, “Why Miers withdrew as Supreme Court nominee,” National Public Radio, quoting conservative leaders on their opposition to Harriet Miers, Oct. 27, 2005.

6
. George W. Bush,
Decision Points
(Crown, 2010), p. 98.

7
. Senate Judiciary Committee Hearing on the Nomination of John Roberts Jr., Sept. 12–15, 2005; first session, p. 170.

8
. Ibid., p. 144.

9
. Ibid., p. 454.

10
. Hope Yen, “Roberts Seeks Greater Consensus on Court,”
Washington Post
, May 21, 2006, speech to Georgetown University Law Center graduates.

1
. Author’s telephone interview with David Engle, May 2011.

2
. Author’s interview with Kathleen Brose, head of Parents Involved in Community Schools, February 2011.

3
. Magnolia Chamber of Commerce, 2000 Census figures.

4
. Douglas Judge, “Housing, Race and Schooling in Seattle: Context for the Supreme Court Decision,”
Western Washington University Journal of Educational Controversy
, vol. 2, Winter 2007.

5
. Author’s interview with Joseph Olchefske, former superintendent of Seattle public schools, May 2011.

6
. 
Parents Involved in Community Schools v. Seattle School District No. 1
, 426 F.3d 1162 (CA9 2005).

7
. Nina Totenberg, “Supreme Court to Weigh Schools’ Racial Plans,” National Public Radio, Dec. 4, 2006.

8
. 
Meredith v. Jefferson County Board of Education
, Brief for respondent on the writ of certiorari.

9
. Press conference statement by Crystal Meredith, June 28, 2007.

10
. James E. Ryan, “The Supreme Court and Voluntary Integration,”
Harv. L. Rev
., 131 (2007), p. 121.

11
. Ibid., p. 140.

12
. Michael Klarman, “Has the Supreme Court Been Mainly a Friend or a Foe to African Americans?” Symposium on Race and the Supreme Court, scotusblog, Feb. 1, 2010.

1
. Author’s interview with Kathleen Brose, February 2011.

2
. Mark Tushnet,
A Court Divided: The Rehnquist Court and the Future of Constitutional Law
(W. W. Norton, 2005), pp. 40–41.

3
. Author’s interview with Harry Korrell of Davis Wright Tremaine, February 2011.

4
. Author’s telephone interview with Sharon Browne of the Pacific Legal Foundation, March 2011.

5
. Keith Ervin, “Parents Challenge Seattle District on Racial ‘Tiebreaker,’ ”
Seattle Times
, July 19, 2000.

6
. Author’s interview with Michael Madden of Bennett Bigelow & Leedom, February 2011.

7
. Jenni Laidman, “Order from the Court,”
Louisville Magazine
, March 2009, p. 52.

8
. Ibid., p. 55.

1
. 
Comfort v. Lynn School Committee
, 418 F.3d 1 (CA1 2005).

2
. Author’s interview with Sharon Browne of the Pacific Legal Foundation, March 2011.

3
. Author’s interview with Michael Madden, February 2011.

4
. Senate Judiciary Committee Hearing on the Nomination of Samuel Alito Jr., Jan. 9–13, 2006, p. 40.

5
. Adam Liptak, “Few Glimmers of How Conservative Judge Alito Is,”
New York Times
, Jan. 13, 2006.