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Preface

In many ways, the US Supreme Court is as determinedly opaque as the National Security Agency. Though it maintains a talented public-information staff, the institution itself takes no responsibility whatsoever for explaining itself to the public. The product of the court’s work—its oral argument transcripts, opinions, and orders—is made available promptly. The real work of the justices, however—deciding which cases to accept, discussing who should win cases and why, picking justices to write opinions, and criticizing the successive drafts—takes place behind a veil of secrecy that, for most of the court staff and law clerks, would be professional death to pierce.

Years after a justice dies, papers in a library may show how and why the court decided some issue. Historians revel in these sources, but for lawyers and citizens who must live today, they provide little help for understanding what the court is up to.

The court’s secrecy is only part of the reason it is ill understood. A nine-member body has no “intention” the way an individual has. Thus the Supreme Court may not really “know” why it is doing what it is doing. Each decision is the sum of many calculations by lawyers, lower courts, and justices to shape issues in a certain way that produces a result. In time, this result may come to seem inevitable, but it almost certainly was not from the outset of the issue. (Think of the court’s iconic school desegregation decision in Brown v. Board of Education. History shows us a bitterly divided court grappling with the issue—until a unanimous opinion improbably emerged.) Wherever the justices may think they are going, the court is quite likely to end up somewhere else, blown off course by the winds of judicial politics. “It is quite true what philosophy says; that life must be understood backwards,” the philosopher Sören Kierkegaard wrote in 1843. “But then one forgets the other principle: that it must be lived forwards.”

In the pages that follow, I have tried to give my sense of one year in the life of the Supreme Court—the “October 2013 term”—that began on the first Monday in October 2013 and (formally) ran until the day before the first Monday in 2014. In reality, OT13, as court watchers call it, reached its climax on the last day of June 2014, when the court delivered its final opinions in argued cases and adjourned.

During the months between the first full conference of late September 2013 and the dramatic announcement of opinions in Burwell v. Hobby Lobby and Harris v. Quinn on June 30, the court heard arguments in seventy-two cases and issued opinions in seventy of them. (Two were “dismissed as improvidently granted,” or DIGed.) It also decided whether to hear some 7,500 cases submitted by petition for certiorari. Its opinions ranged from interpreting areas of the Constitution seldom before interpreted (e.g., when is the Senate in “recess” for purposes of presidential “recess appointment”?) to resolving mundane questions of statutory interpretation (e.g., do individual retirement accounts meet the statutory definition of “retirement funds” under the federal bankruptcy code?). Each opinion takes the court further into a legal future it cannot foresee. OT13, like every term, is a way station. Not for a generation, perhaps, will we know where the trail was leading.

So view what you are about to read as a kind of traveler’s diary. It makes no pretense to prophecy. I don’t know where this court is going.

My role as a court watcher is unusual. Though I am accredited to the court’s press gallery, my professional identity is as professor of law at the University of Baltimore. For twenty years, at five major law schools, I have studied and taught the court’s constitutional jurisprudence. In my reporting, I look for the legal sources of the court’s latest constitutional decisions; in my writing, I assess the court’s work frankly and without any of the reticence that beat reporting sometimes imposes. I am not at the court to be a dispassionate observer. I write what I think. Sometimes what the court does delights me—not necessarily because it is what I would have decided myself but because I think it is conscientious, careful judging that shows respect for history and precedent; at other times, when the court majority seems slapdash, petty, and partisan, I feel like Evelyn Waugh reading the poet Stephen Spender: “to see him fumbling with our rich and delicate language is to experience all the horror of seeing a Sevres vase in the hands of a chimpanzee.”

At the opening of OT13, I was sixty-three years old. I grew up in the white middle class of the twentieth-century South. Until I was fifteen years old, I lived under segregation—a regime of white supremacy enforced by legal coercion and extralegal violence. During the 1960s, as if in a dream, I witnessed the collapse of this icy monolith and the birth of a new and freer order.

That change occurred, in large part, because a generation of Americans decided—some eagerly, others with reluctance and dread—to bring to life the phrases “due process” and “equal protection” written into the Constitution in 1868. Contrary to popular myth, the Supreme Court did not liberate the South. Freedom came because of the bravery of the civil rights movement and the persistence of a bipartisan coalition in Congress. But the court played an important part.

Since that time, I have felt a kind of reverence for the Constitution and for the judges who follow it. That reverence led me after a career in journalism to law school and a second career following the Constitution and the court. I feel elation when courts and citizens read the document as a charter of equality and a set of rules for self-government. I feel anger and despair when they read it as a bulwark of privilege and paralysis.

I explain this only so that the reader will understand two things about American Justice 2014. First, of the court’s published opinions, I have concentrated on those that interpret the Constitution because I know a little bit about the subject. I have almost nothing to say about employee stock ownership plans under the Employee Retirement Income Security Act or about the Copyright Act of 1978 as applied to the individual remote-antenna technology pioneered by Aereo Inc. This book assesses how the court cared for the Constitution during OT13 and refers to other cases if at all simply to illuminate ongoing constitutional disputes. I give short shrift even to some constitutional decisions when they did not represent important divisions within the court.

Second, what follows is my frank assessment of the decisions I discuss and of each of the nine justices as I observe them, watching them on the bench and reading reams of their writing. Not to hide the ball, I believe the court reached essentially the right decision in Hall v. Florida (procedures for assessing potentially intellectually disabled defendants in capital proceedings), Susan B. Anthony List v. Driehaus (organizations’ right to challenge laws against making “false statements” during election campaigns), and National Labor Relations Board v. Noel Canning (use of “recess appointments” to name members of the National Labor Relations Board while the Senate was holding pro forma sessions). I believe the court erred, in some cases badly, in McCutcheon v. Federal Election Commission (aggregate limits on federal campaign contributions by individuals), Town of Greece v. Galloway (explicitly Christian prayer at town council meetings), Schuette v. Coalition to Preserve Affirmative Action by Any Means Necessary (statewide referendum on affirmative action in higher education admissions), Harris v. Quinn (“agency fees” for state-paid home health-care workers), and Burwell v. Hobby Lobby Stores (religious objections to insurance coverage for contraception as required by the Affordable Care Act).

You may very well disagree with me on any or all of these cases, but read on: if this book brings any pleasure and profit, it likely arises from whatever disagreement it stirs in the reader. With each passing year, as I learn more about the Constitution, I grow more convinced that the Constitution of 2014—the 1789 text and the twenty-seven amendments that “we the people” have added during two centuries of blood and hardship—serves its function not when it provides answers but when it sparks questions. Some interpreters of the Constitution claim to understand and follow the “original understanding” of its authors; others insist they are applying a “living document” as history changes the meaning of its words. Others disclaim what Judge J. Harvie Wilkinson III of the Fourth Circuit called “cosmic constitutional theory,” suggesting that judges should work with whatever lawyers’ tools seem most suited to resolve a particular dispute. In the end, these methodological quarrels don’t mean much to citizens. Whenever we debate the Constitution, we are in fact arguing not about words or history or legal precedent but about what our country should look like tomorrow. Our deepest desires for our country are often at odds with those of our neighbor; arguing about the Constitution gives us an alternative to settling our disputes by shedding blood.

As a peace-keeping device, the Constitution has a mixed record. Its original version failed catastrophically in 1861, producing a grisly national festival of fratricide. But since the Constitution was born again in 1865–70, it has succeeded well at providing us a set of rules for social argument and debate. It is, in effect, the deck of cards in our national high-stakes poker game. Those who read the cards differently than I do are welcome to do so. Walt Whitman, our great constitutional poet, once wrote of human identity that “every atom belonging to me as good belongs to you.” Nowhere is that more true than of the Constitution and of its judicial vestals, the nine justices of the US Supreme Court.

Before we begin, I would like to acknowledge some people who have contributed to the success of this venture. Damon Linker of the University of Pennsylvania Press proposed this project to me at the beginning of the term and has supported it stalwartly since then. I thank him and the staff at the press for introducing me to the new world of e-books. My assistant, Shavaun O’Brien, can, I am convinced, do anything between a 10 a.m. emergency e-mail and lunch; she saved the project innumerable times. Dean Ron Weich of the University of Baltimore School of Law encouraged me to explore a new kind of legal scholarship. My University of Baltimore faculty colleague, Elizabeth Samuels, is as always a force for good in my work. My research assistants at the law school, Kristen Lim and Valerie Anias, provided crucial assistance, as did David Matchen and the rest of the staff of the University of Baltimore Law Library. In the final stage of writing, I took refuge in the Duke University Law Library; thanks to gracious hospitality from professors Paul Haagen and Dick Danner and Frances Conrad of the dean’s office, it was idyllic. Kathy Bader was, as always, the perfect hostess during that frantic time.

As Supreme Court correspondent for the The Atlantic Online, I have worked with a number of talented editors, including Bob Cohn, John Gould, David Graham, Jennifer Rothenberg Gritz, Emma Green, Don Peck, and Scott Stossel. I was also lucky enough to gain admission to the court’s press room and press gallery; the staff of the Supreme Court Public Information Office has been patient, generous, evenhanded, and good humored. In the press room, the brightest reporters in America decode the court’s workings for the public. I am in awe of their care, thoroughness, fairness, knowledge of the law, and ability to make complex concepts clear. I must particularly thank Lyle Deniston of SCOTUSblog, who freely shared his matchless knowledge of court history and procedure. All these professionals have shown innumerable kindnesses to an academic interloper. I freely confess that I steal from them almost daily.