Press Room

NEW YORK – May 7, 2013 – Marcia Coyle, Chief Washington Correspondent for ALM’s National Law Journal, one of the nation’s most respected and incisive observers of the U.S. Supreme Court, offers a fascinating, timely, and provocative perspective on the inner workings of today’s Court in THE ROBERTS COURT: The Struggle for the Constitution (Simon & Schuster; May 7, 2013; $28.00).

Coyle, who also appears regularly on PBS NewsHour, examines four recent landmark cases—on health care, money in elections, guns, and race—to show not only how the Justices have split 5-4 along conservative-liberal lines, but how these cases were actually decided, the critical constitutional principles that were at stake in each, and the significant role of conservative judicial activists in shaping and arguing them.

In each of the four landmark Roberts Court decisions, the justices do battle and ultimately divide 5-4 over the meaning of parts of the Constitution: the Fourteenth Amendment’s guarantee of equal protection in the school race cases; the Second Amendment’s right of the people to keep and bear arms in the gun challenge; the First Amendment’s guarantee of free speech in the campaign finance case; and Article I’s grant of powers to Congress to regulate commerce and to tax and spend for the general welfare in the health care challenge.

“Disparagingly dubbed ‘Obamacare’ by its opponents,” Coyle writes, “the Patient Protection and Affordable Care Act became the centerpiece of the latest struggle for ownership of the true meaning and scope of some of the U.S. Constitution’s most significant grants of power. It is a struggle as old as the Constitution itself, and it engages public passions particularly when the nation faces pressing social or economic questions. The struggle is not only between one president and one chief justice, or between the Congress and the Supreme Court. It is a struggle within the Supreme Court itself and it reflects differing visions as well within the other branches of government, the political parties, and the American people themselves.”

Moreover, Coyle’s four cases reveal a confident conservative majority with a muscular sense of power, a notable disdain for Congress, and a willingness to act aggressively and in distinctly un-conservative ways by:

• Boldly raising questions not asked or not necessary to resolve, as in the 2010 campaign finance blockbuster, Citizens United v. Federal Election Commission;
• Refusing to defer to decisions by elected and accountable local or national officials, as in the 2008 Second Amendment gun ruling—District of Columbia v. Heller—the 2007 Seattle-Louisville public school integration decision, and the 2012 health care ruling;
• And overriding precedents, both old and recent, as in Citizens United, Heller, and the Seattle-Louisville cases.

In addition, each of the four decisions has left the door open to future efforts to push the envelope in controversial areas of the law. Gun rights activists are filing challenges to state bans on assault weapons and the open carrying of guns, and to guns on campuses. State public finance systems for election campaigns are under attack post-Citizens United. The affirmative action challenge to the University of Texas’s admissions policy, now before the Supreme Court, is being pursued in the name of the “color-blind Constitution” endorsed by four conservative Justices in the Seattle-Louisville ruling. And after the health care decision, new suits attacking parts of the law on religious and other grounds have been filed. Supreme Court decisions matter, and so too do presidential elections.

Furthermore, as Coyle observes, all four decisions had at their inception very smart and talented conservative or libertarian lawyers who, when necessary, handpicked the most sympathetic clients for their lawsuits, strategized over the best courts in which to file, and, with an eye toward their ultimate target—an increasingly friendly and conservative Supreme Court—framed the winning arguments.

In fact, the same scenario is unfolding in the 2012-13 term in the Court’s most important challenge to affirmative action in more than a decade. Fisher v. University of Texas is a challenge by a white student rejected for admission to the university. She claims that the consideration of race as one of many factors in the admissions process violates the Constitution. The driving force behind the Fisher lawsuit was not the student, Abigail Fisher, but Edward Blum, head of his own conservative one-man, anti-affirmative action organization.

As Coyle notes, more than 50 percent of the Court’s cases each term are decided unanimously or nearly unanimously, by 8-1 or 7-2 votes. That fairly consistent rate of agreement is a reflection of the remarkable ability of the Court to achieve consensus on widely varying questions of law. But it is from the Court’s 5-4 decisions, Coyle says, that we learn the most about the justices themselves. The most closely divided rulings of the Roberts Court reveal sharply divergent views of history, approaches to interpreting the Constitution, the role of government in American lives, and what makes a just society.

Those decisions also are a reminder of the importance of presidential elections to the future direction of the Court.   Three Justices are currently in their seventies, two on the Court’s conservative wing—Antonin Scalia and Anthony Kennedy—and one on the moderate-liberal wing—Stephen Breyer. Another moderate-liberal, Ruth Bader Ginsburg, turned eighty on March 15, 2013. Although none shows any inclination to step down, the replacement of just one of the four has major implications for the outcomes on issues that narrowly divide them.

As Coyle points out, the health care challenge, perhaps the most important of the four cases she addresses, arose at a particularly sensitive time for the Roberts Court. To an unprecedented degree, Coyle asserts, the ideologies of the nine justices are aligned with the politics of the presidents who appointed them. Moreover, the Bush v. Gore decision that decided the presidential election of 2000 triggered an enduring cynicism about the Court among many Americans. This cynicism was reflected in a number of public opinion polls taken shortly before the 2012 health care ruling, in which a majority of voters said politics would influence the outcome of the challenge to the new law. Twenty-five years ago, two-thirds of Americans approved of the Supreme Court. Today, that number has dropped to 44%—the consequence of what is perceived to be an increasingly politicized Court.

As Coyle points out, it is convenient shorthand to speak of the conservative or liberal wings of the Roberts Court. As her four cases demonstrate, however, those blocs are not monolithic, and there were significant disagreements on each case within as well as between the conservative and liberal camps. As one justice told Coyle, “It’s always troubling, and I know it’s an easy way to get a hook on things, to say that there are however many conservatives or liberals on one side or the other, but that’s not the way we approach any individual case. The results are what the results are, but the idea that there’s one block or two blocs is just not the way we do it.”

So how, Coyle asks, is the public to judge the Roberts Court and its signature decisions? Few who closely watch the Court doubt that it is the most conservative Supreme Court in decades, despite the ruling upholding the health care reform law. As Coyle explains, it is more conservative than its predecessor, the Rehnquist Court, primarily because Samuel Alito, Jr., replaced Sandra Day O’Connor, formerly the center of the Court, and Alito is more conservative than O’Connor was. And because Alito replaced O’Connor, Anthony Kennedy moved into the current center of the Court—its crucial swing vote —and he votes more often with his conservative colleagues in cases closely dividing the Court than O’Connor did.

Yet she offers a more subtle way to evaluate the Court, as well. Each of the four cases she highlights was a contest between competing constitutional values. In Citizens United, it was the liberty model of free expression that says corporations can spend all the money they want in elections versus an equality approach that says there must be some limitation on corporations so they do not drown out other speech. In the health care case, there was the conflict between state and federal powers; in the gun rights case, the battle between originalism and pragmatism; and in the race case, the tension between the rights of individual parents and students and the goals of correcting past wrongs and achieving racial diversity.

Ultimately, the public has to carefully consider the Court’s decisions to judge them, retired justice David Souter said in a public discussion of the Court. “A principled decision,” she quotes Souter as saying, “is one in which the Court candidly and convincingly explains why this principle prevailed over that principle. It is the choice of principles that is the tough part. The public judgment has got to be a judgment on whether they believe what the Court says, whether they believe what the Court says is convincing in making that choice between principles.” For “in the end,” Coyle writes, “the public’s judgment remains the key to the Court’s most important and only institutional power: its legitimacy in the eyes of the American people.”

In the tradition of Bob Woodward’s The Brethren and Jeffrey Toobin’s The Nine, Marcia Coyle’s THE ROBERTS COURT draws back the curtain on the nation’s highest court. In a lively, fast-moving, and deeply informed narrative, she analyzes four of the Court’s most controversial and revealing recent opinions, identifies the constitutional principles at stake therein, and elucidates how today’s Court is both reflecting and affecting the nation’s broader political argument.

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