Mark Joseph Stern - American Justice 2019: The Roberts Court Arrives

American Justice 2019

Garrett Epps, Consulting Editor

American Justice 2019

The Roberts Court Arrives

Mark Joseph Stern

UNIVERSITY OF PENNSYLVANIA PRESS

PHILADELPHIA

Copyright 2019 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

Published by

University of Pennsylvania Press

Philadelphia, Pennsylvania 19104-4112

www.upenn.edu/pennpress

Printed in the United States of America

A Cataloging-in-Publication record is available from the Library of Congress

Cover design by John Hubbard

ISBN 978-0-8122-5213-2

Contents

Introduction

The Chief Takes Charge

On the morning of October 9, 2018, the justices of the U.S. Supreme Court walked from behind the red velvet curtains in the courtroom and took their seats on the bench. The arguments that day were relatively dullthey all involved complex questions about a sentencing enhancement lawbut the courtroom was electric. Outside, crowd-control barricades blocked access to the gleaming white marble front plaza. On the concrete sidewalk in front of the building, a small cluster of women in blood-red costumes featured in the TV show The Handmaids Tale held signs in silent protest. We the people do not consent, one read. Happy first day, liar, said another. Court police kept watch from the plaza, warily eyeing the protesters. A gray sky hung low over the marble palace, adding to the subdued mood of the demonstration.

Eight days earlier, the court opened the new termformally called the October 2018 term, or O.T. 2018with only eight members. The U.S. Senate was embroiled in a heated debate over the confirmation of then-nominee Brett Kavanaugh. On October 6, the Senate confirmed Kavanaugh by a razor-thin margin. Just hours later as swarms of furious protestors pounded on the courts massive bronze doors, Justice Kavanaugh was sworn in.

October 9 marked Kavanaughs debut on the bench. Before beginning the days proceedings, Chief Justice John Roberts made a brief announcement. Before we commence the business of the court this morning, Roberts said, it gives me great pleasure, on behalf of myself and my colleagues, to welcome Justice Kavanaugh to the court. Then the chief justice admitted attorneys to the Supreme Court bar, a routine that precedes oral arguments. As he spoke, Kavanaugh interacted with Justice Elena Kagan, who sits to his right. The two chatted and laughed like old friends. For the rest of the morning, there was no clue that anything was out of the ordinary except the absence of seats in the back of the courtroomthe wooden chairs on which spectators from the public typically sit for a brief glimpse of the justices in action. It seemed that the court had limited public attendance to minimize the risk that protesters might interrupt the newest justices first arguments.

Kavanaughs appearance on the bench marked the end of one of the most astonishing and painful chapters in the courts history. President Donald Trump nominated him on July 9 to replace Justice Anthony Kennedy, the courts perennial swing vote. For years, Kennedy had frustrated conservatives by periodically siding with the four liberal justices on contentious issues, including abortion, same-sex marriage, and capital punishment. Kavanaugh, a former Kennedy clerk, evinced no interest in filling his old bosss shoes as a swing vote. His career was steeped in Republican politics: He had aided Kenneth Starrs investigation into President Bill Clinton, worked for George W. Bush during the Florida recount, and served as White House staff secretary during the Bush administration. In 2006 Kavanaugh was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit, where he served as an ardent conservative.

The replacement of Kennedy with Kavanaugh was bound to be controversial. Liberals were still livid that Senate Republicans had refused to consider President Barack Obamas nominee, the moderate judge Merrick Garland, after Justice Antonin Scalia died in 2016. Trump had instead placed Justice Neil Gorsuch, a rock-ribbed conservative, in Scalias seat. Kennedy had appeared to be the one justice standing between the courts four Republican appointees and a conservative revolution in American jurisprudence. Kavanaugh, Democrats feared, would provide the fifth vote to overturn progressive precedent and push the law far rightward. During his initial confirmation hearings in September Kavanaugh was cagey about his views, but his forceful opinions on the D.C. Circuit spoke for themselves. He reliably rejected the legal philosophies that lay behind landmark Supreme Court decisions cherished by the Left. As a judge, Kavanaugh was no centrist.

A bare majority of senators were poised to confirm Kavanaugh when, in September, a psychology professor named Christine Blasey Ford publicly accused him of sexual assault. Ford alleged that in 1982 when she was fifteen and Kavanaugh was seventeen, he and a friend had tried to rape her at a house party. The Senate Judiciary Committee held additional hearings on September 27, 2018, to evaluate the claim. The nation was riveted; more than 20 million people watched on TV. Ford testified about her memory of the night in question with harrowing force and emotion. I am here today not because I want to be, she told the committee. I am terrified. I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school.

Ford said she had no doubt that the man now nominated to the highest court in the land was the same person who thirty-six years earlier had sexually assaulted her. Brett groped me and tried to take off my clothes, she testified. He had a hard time because he was so drunk, and because I was wearing a one-piece bathing suit under my clothes. I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from screaming. This was what terrified me the most, and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me.

Kavanaugh then provided impassioned testimony of his own. His voice trembling, his eyes welling with tears, he accused the Democratic senators sitting before him of engaging in a grotesque and coordinated character assassination. He spoke with raw anger, indignation, and disgust. The Democrats well-funded effort to destroy my good name and destroy my family, Kavanaugh declared, was a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.

You sowed the wind for decades to come, he told the senators. I fear that the whole country will reap the whirlwind.

The Senates investigation into Fords allegations shed little light on the truth, as did the Federal Bureau of Investigations supplemental investigation, upon which the White House imposed strict limitations. In the end, Kavanaughs emotional testimony carried the day. Every Republican senator except Alaskas Lisa Murkowski supported his confirmation, while every Democratic senator except West Virginias Joe Manchin came out in opposition. Kavanaugh was confirmed by a vote of 5048.