Opinion

CARLOS LOZADA: In which conservative justices ponder just how far they will go

Friday, April 14, 2023 -- Joan Biskupic's "Nine Black Robes" shows how the politics surrounding the Supreme Court leading to President Donald Trump's three appointments has produced a realignment in which the standard liberal-moderate-conservative lines no longer define the institution.
Posted 2023-04-13T18:51:14+00:00 - Updated 2023-04-14T09:00:00+00:00

EDITOR'S NOTE: Carlos Lozada is a New York Times columnist . He is the author of “What Were We Thinking: A Brief Intellectual History of the Trump Era” and the winner of the 2019 Pulitzer Prize for criticism.

Some four decades and two chief justices ago, Bob Woodward and Scott Armstrong published “The Brethren,” an unusual look inside the politics — especially the office politics — of the Supreme Court. The book’s novelty, and much of the criticism it elicited when it was published in 1979, resulted from the authors’ treatment of the high court as just one more Washington institution. The book exposed rivalries among the justices and self-importance among the clerks, as well as the robe-twisting that shaped major decisions on school busing, the Pentagon Papers, abortion rights and the Nixon tapes.

In “The Brethren,” the buzzy and the meaty occupy the same chambers. Justices deride one another behind their backs — “spaghetti spine,” “usurper” and “dummy” are among the typical insults — and staff members gather around a portable TV to watch the Senate Watergate hearings, with Justice Thurgood Marshall providing running commentary. (“Right on, Brother Dean.”) Chief Justice Warren Burger frustrates his colleagues by waiting until the last minute to reveal his vote, thus often joining the majority and retaining the power to assign the opinion to the justice of his choice, or to himself. At times we see justices deciding their votes on political or personal rationales and then casting about for constitutional justifications. And “The Brethren” puts the “office” in office politics: When Burger extends the justices’ 30-minute lunch gatherings to a full hour, multiple dissents ensue. (Hugo Black, for instance, worries they all might start overeating.)

Joan Biskupic’s new book on the high court, “Nine Black Robes,” is more analytical, less focused on insider details than on how the ideological divides of the Trump era are apparent in the decisions and demeanor of the high court. Still, it is hard to read “Nine Black Robes” without thinking about “The Brethren.” Woodward and Armstrong show how politicking inside the court led to the ascent of a moderate faction between the liberals of the Earl Warren court and the Nixon-era conservative wing. Biskupic shows how the politics surrounding the court leading to President Donald Trump’s three appointments has produced a realignment in which the standard liberal-moderate-conservative lines no longer define the institution. What matters most now are the divides among the conservative justices, as they ponder how far they will go.

“The center was in control,” Woodward and Armstrong write in the final sentence of “The Brethren.” “The court had no middle, no center to hold,” Biskupic laments at the end of “Nine Black Robes.” Sometimes sequels are written decades apart and by different authors.

The justices in Biskupic’s account repeatedly assert that the court is not politicized. “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” Justice Amy Coney Barrett declared in a speech in 2021. (She was speaking, incidentally, at the University of Louisville’s McConnell Center.) “The last thing that the court should do is to look as polarized as every other institution in America,” Justice Elena Kagan said in a 2019 speech. “The only way to be seen as not that — is not to be that.” Ever the institutionalist, Chief Justice John Roberts contrasted the court’s work with that of the other branches. “What I would like to do, briefly, is emphasize how the judicial branch is — how it must be — very different,” he said shortly after the indelible confirmation hearings for Brett Kavanaugh in 2018. “We do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest. We serve one nation.”

How the judicial branch is — how it must be — very different. Roberts’ phrasing seems to acknowledge that he is stating a hope as much as fact. The Supreme Court regarding itself as apolitical is a bit like the Senate still considering itself the world’s greatest deliberative body — that is, somewhere between aspiration and self-delusion. Even though politics and ideology divided the court well before Trump sat in the Oval Office, Biskupic writes, “the Trump presidency and the forceful influence of his three Supreme Court appointees propelled the judiciary into a new period of polarization.”

Of course, “The Brethren” too depicts a court in which political considerations were constant. Burger — the only justice who the authors specifically say was not interviewed for the book — frequently worries about the implications of various decisions for the Nixon administration, and he makes a point of issuing some nonconservative opinions early in his tenure to “confuse his liberal detractors in the press,” Woodward and Armstrong write. And when the court is deciding whether President Richard Nixon can invoke executive privilege to avoid handing over recordings of his White House conversations, Justice Harry Blackmun counsels Burger that the court’s opinion would be more influential if written by a justice who was a Republican as well as one of Nixon’s appointees. Given that William Rehnquist was recused from the case and that Burger, as chief justice, would preside over a potential Nixon impeachment trial in the Senate, that formula conveniently left only Blackmun. (Unpersuaded, Burger assigned himself the unanimous opinion in United States v. Nixon, in which the court ruled against the president.)

When health problems force Justice William Douglas to the sidelines, his colleagues panic over President Gerald Ford’s potential pick, and how recent 5-4 opinions might end up going the other way. “They were all horrified at the prospect of half a dozen major decisions being reversed in a year’s time,” the authors write. “The court would appear to be a political institution, its decision less rooted in the law than in the personalities and politics of the individual justices.” This concern that the court might merely appear politicized — rather than concern that it would in fact be revealed to be politicized — still reflects an abiding faith among members of the high court.

An institution less rooted in the law than in the personalities and politics of the justices is very much how Biskupic depicts the court. Before the death of Justice Ruth Bader Ginsburg, Roberts had already become the new “ideological center” of the institution. In mid-2019, she writes, “there was still some pretense that the two ideological camps were trying to work together.”

But when Barrett became Trump’s third appointee in late 2020, giving the conservatives a six-vote majority, the longer-serving justices Clarence Thomas and Samuel Alito were “emboldened by the ascendant conservatism,” Biskupic writes. “Joined by the Trump appointees, they echoed the former president’s sense of aggrievement on culture war issues, from abortion rights to vaccine mandates. Their time had come.” (Much as with Trump voters, “grievance” is the obligatory reference when describing conservative justices. Biskupic claims that Alito, for one, sounds “perpetually aggrieved” and wears a “heavy cloak of grievance.” Perhaps the cloak fits under the robe.)

Biskupic, a CNN Supreme Court analyst and biographer of four current and past justices, dissects the personalities on the court. Thomas, previously on the “ideological fringe” and often alone in his dissents, is now in the “vanguard” of the conservative supermajority: “Both he and Alito were only in their early 70s, but they felt a sense of urgency, as if their time were limited.” Kavanaugh, meanwhile, comes off as painfully self-conscious, struggling to reconcile “his allegiance to conservative backers and his desire for acceptance among the legal elites who shunned him after his scandalous 2018 Senate hearings.” (Biskupic points out that Kavanaugh at times adds “appeasing passages” to his opinions and dissents, just to signal that he’s not a bad guy.)

So, when a chapter in “Nine Black Robes” is titled “The Triumvirate,” a reader might assume that it signals a discussion of the three Trump-appointed justices, or perhaps of some powerful new coalition on the court. Instead, it concerns a trio that has wielded power over the court from outside: Sen. Mitch McConnell, R-Ky.; Don McGahn, a White House counsel under Trump; and Leonard Leo, a conservative legal activist and a former vice president of the Federalist Society. “The three men understood the importance of the federal courts to a long-term policy agenda, from business interests to individual rights,” Biskupic writes, and they sought “jurists appointed ostensibly as neutral arbiters but who in reality held to their own ideologies.”

Each contributed to the same cause from his respective perch. McConnell blocked President Barack Obama’s nomination of Merrick Garland to the Supreme Court, a move he later called “the most consequential decision of my career.” McGahn shepherded Neil Gorsuch and Kavanaugh onto the court and, anticipating an eventual promotion, positioned Coney Barrett onto the 7th U.S. Circuit Court of Appeals. Leo, skilled in vetting judicial nominees for ideological purity and reliability, worked with McGahn and others to assemble the list of potential Supreme Court nominees that Trump, in a brilliant effort to reassure Christian conservatives, released in May 2016. Indeed, it is a testament to Leo’s influence — and that of the Federalist Society — that he makes a cameo in the recent ProPublica report about Thomas’ luxury vacations funded by a billionaire Republican donor. Inside the donor’s private lakeside resort in upstate New York there is a painting of Thomas relaxing with the donor and a few other guests. Sitting across from the justice? Leo.

In “The Brethren,” the stamp of approval of the American Bar Association is crucial for potential Supreme Court nominations (although Nixon does ask Blackmun if his daughters, in their 20s, were “hippie types”). In “Nine Black Robes,” it is the Federalist Society’s sign-off that matters most.

To chart the court’s movement rightward, Biskupic focuses on recent cases expanding gun rights, prioritizing religious freedom and curtailing the regulatory power of the state. (“There is a coherent plan here, where actually the judicial selection and the deregulatory effort are really the flip side of the same coin,” McGahn told the Conservative Political Action Conference in 2018.) And Biskupic notes how, in their opinions, concurrences and dissents, the justices don’t just disagree over the finer points of legal analysis, but also assail one another’s motives. In a case involving policing, Gorsuch suggested that his colleagues were being deferential to Black Lives Matter activists, while in a case over sentencing of juveniles, Justice Sonia Sotomayor asserted that Kavanaugh was “fooling no one” with his “egregious” interpretation of past decisions.

While the title of “The Brethren” has a touch of irony to it, given all the bickering in those pages, those justices use the term themselves to describe their insular community, with respect and even affection. In the court that Biskupic describes decades later, all that seems to unite the members are those nine black robes.

As president, Trump was fond of possessive expressions to designate and denigrate other portions of the state — “my generals,” “my Kevin” — and members of the high court have rejected his use of “my judges.”

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts told The Associated Press in 2018. The court eventually signed off on the third iteration of the Trump administration’s travel ban in 2018 and most notably, helped fulfill a Trump campaign promise when it overturned Roe v. Wade in 2022, but it also rejected a lawsuit by Texas aimed at challenging the results of the 2020 election in several battleground states. “Trump had pulled the justices down in the dirt with him at various points over the previous four years, but not this time,” Biskupic points out.

Ironically, it is a case in which the court’s liberals prevailed that shows how the conservative wing has become a self-contained, Federalist Society salon. When Gorsuch wrote a 6-3 majority opinion in 2020 declaring that the 1964 Civil Rights Act protected the rights of gay and transgender employees, he based it on a so-called textualist reading focusing on the precise wording of the statute. (Title VII of the Civil Rights Act banned employment discrimination based on an individual’s “race, color, religion, sex or national origin,” and the majority interpreted “sex” as covering sexual orientation and gender identity.)

Gorsuch regards himself as a textualist in the mold of Antonin Scalia, but his decision did not sit well with another Scalia devotee on the court. “No one should be fooled,” Alito said in a dissent. “The court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated — the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.” According to Alito, Scalia “would have been in disbelief that the Congress of 1964 would have enacted a statute covering LGBTQ interests,” Biskupic writes. Gorsuch, no slouch in the Scalia Studies Department, responded by citing a 1998 case in which Scalia had written that a statutory prohibition can “often go beyond the principal evil to cover reasonably comparable evils.”

It’s not just about parsing the intent of the writers of the Constitution. For this new supermajority, originalism now also seems to mean fighting over what Scalia really intended.

Biskupic offers an astute assessment of her own on how to interpret Scalia. At a Federalist Society meeting at the University of Chicago in the early 1980s, Scalia spoke of the power of like-minded people coming together with a singular, common purpose. The law professor and future justice quoted Federalist 49, written by James Madison: “The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated.” Scalia mentioned that episode to Biskupic when she interviewed him for a 2009 biography, and he emphasized the loneliness of campus conservatism and the importance of intellectual fellowship.

“Rereading that Scalia comment more than a decade and a half later,” Biskupic writes, “I am struck by how much it speaks to the potency of a six-justice majority over that of a five-justice bloc. The numbers have given the right wing a new confidence, beyond a single extra vote, to reconsider and overturn a half-century of rights and regulations.” A conservative supermajority doesn’t just affect the direction of the court. It also affects how far in that direction that majority might venture.

Biskupic is clearly troubled by the possibilities; her book has a politics of its own. She longs for the days of “unpredictable, less ideological” justices like John Paul Stevens, Byron White, Lewis Powell and David Souter, and writes in an author’s note that the court today is moving the country “backward.” She looks to affirmative action, voting rights and discrimination against same-sex couples as areas where a “greater erosion of rights” is likely.

“Three of the justices in the new conservative supermajority — Thomas, Alito and Gorsuch — were writing daring opinions impugning decades of precedent,” Biskupic writes. “The question was whether the remaining conservatives — Roberts, Kavanaugh and Barrett — would put any brake on their zeal.”

The Supreme Court’s willingness to rethink precedents is an eternal preoccupation for writers and scholars of the court, and the doctrine of stare decisis has multiple index entries in both these books. One justice cited in “The Brethren,” Rehnquist, then the youngest member of the court, made a prophetic description for his colleagues of how the battles over precedent would shift over time. Here is how Woodward and Armstrong describe it:

“It was only recently that activism on the court had become ‘liberal’ activism, Rehnquist reminded them. Only 40 years before, the court’s activists were conservatives. The balance was once again shifting back, Rehnquist said. Once it had, the liberals would be the ones calling for judicial restraint and chiding the conservatives for ignoring precedent.”

And so they are.

This article originally appeared in The New York Times.

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