Coyle Marcia - The Roberts Court : the struggle for the constitution

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For Ray, Robbie, and Kat

A bell rings through the chambers of the nine justices of the Supreme Court just five minutes before they take their seats in the courtroom to hear arguments in the days cases. The sound reminds them that it is time to go to the robing room, an oak-paneled room, containing nine closets, each with a brass nameplate of the justice whose robes are inside. As soon as more than one justice enters, the traditional handshake in which each justice shakes hands with each of the other eight begins. If someone is missed there, the next opportunity is the next stop: the main conference room off of the chief justices chambers. Chief Justice John Roberts Jr. likes to be the first justice into the conference room in order to greet his colleagues as they enter.

The handshake is done before arguments and before each conference in which the justices discuss petitions for review and vote on cases. Chief Justice Melville Fuller started the tradition in the late nineteenth century as a reminder that although they may differsometimes passionatelyin their opinions, they can find harmony in their common purpose.

When the justices leave the conference room on argument days, they wait in a small area behind the heavy maroon drapes that separate them from the courtroom for the buzzer announcing the 10 am start of court. On some days, the waiting public may hear muffled voices or laughter behind those drapes. On June 28, 2012, the day on which the Roberts Court would issue its most important decision in seven years, a decision with the potential to shape a presidential election and to alter the constitutional structure of government, no sound came from behind the curtains, and silence quickly descended upon a courtroom whose atmosphere was electric with anticipation.

All of the justices did shake hands that morning before the fate of the nations new health care law was revealed, confirmed one justice, but the harmony of a shared purpose was harder for some to grasp. This was a bitterly divided Court.

In one sense, the Roberts Court had come full circle. The last day of the 200607 term (ironically also June 28), had been the high-water mark for intense emotion and disagreement on the Court. A 54 conservative majority, led by Roberts, rejected two school districts attempts to maintain racial diversity in their public schools. The Courts four moderate-liberal justices, in passionate dissent, accused Roberts and the majority of distorting the meaning of the landmark Brown v. Board of Education , which ended school segregation, and of abandoning other important precedents on issues ranging from abortion to antitrust law. On the final day of the 201112 term, Roberts and the four moderate-liberal justices found common ground to save the linchpin of the new health care lawthe individual mandatewhile the four remaining conservatives, in angry dissent, skewered the majority for rewriting the law, they claimed, to make it constitutional. That day, one justice later said, was as intensely emotional for all of them as the day of the school race decision five years earlier.

Disparagingly dubbed Obamacare by its opponents, 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. Constitutions 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 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.

Four signature decisions of the Roberts Court expose the fault lines among the justices as they engage in this ongoing struggle. They 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 unconservative 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 landmark health care ruling,

And overruling precedents, both old and recent, as in Citizens United , Heller , and the Seattle-Louisville cases.

In each of the four decisions, the justices do battle and ultimately divide 54 over the meaning of parts of the Constitution: the Fourteenth Amendments guarantee of equal protection in the school race cases; the Second Amendments right of the people to keep and bear arms in the gun challenge; the First Amendments guarantee of free speech in the campaign finance case; and Article Is grant of power to Congress to regulate commerce and to tax and spend for the general welfare in the health care challenge.

Cases usually get to the Supreme Court after an expensive, hard slog through the lower courts. Some begin, as the Seattle-Louisville cases did, with mothers upset that their children did not get into their first choice of a public school. Others, like the Heller gun case, start with two lawyers deciding, over drinks, to manufacture a Second Amendment case.

All four landmark Roberts Court 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 targetan increasingly friendly and conservative Supreme Courtframed the winning arguments.

In fact, the same scenario is unfolding in the 201213 term in the Courts most important challenge to affirmative action in almost 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 policy violates the Constitution. The driving force behind the Fisher lawsuit was not the student, Abigail Fisher, but Edward Blum, head of the conservative one-man, antiaffirmative action organization, the Project on Fair Representation.

As he said in a Texas Tribune interview: I find the plaintiff, I find the lawyer, and I put them together, and then I worry about it for four years. Blum, who opposes all race-based classifications, is also behind a key challenge in the Supreme Court to the Voting Rights Act of 1965, the most successful civil rights law in history.

More than 50 percent of the Courts cases each term are decided unanimously or nearly unanimously by 81 or 72 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. So why focus on 54 decisions and these four rulings in particular? First, the four cases are defininglandmarkrulings of the Roberts Court and deserve close scrutiny. Second, it is from the Courts 54 decisions 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.