The Roberts Court: The Struggle for the Constitution

  • Marcia Coyle
  • 416 pp.
  • Simon & Schuster

A seasoned reporter dissects ideologically charged cases on racial preferences, gun rights, campaign financing and challenges to Obamacare.

Lawsuits are little wars. Ideologically driven lawsuits are battles in long and lasting wars.

The Roberts Court is the story of four Supreme Court cases on racial preferences, gun rights, campaign financing and challenges to Obamacare from 2007 to 2012.  Each was a 5-4 decision. Each engendered rancorous dissenting opinions. According to Coyle, together the cases  “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.”

Marcia Coyle is the National Law Journal’s chief Washington correspondent and a contributor to PBS’s “NewsHour.” This book, her first, delves into back stories, showing how promoters of ideological litigation hand-pick clients and lawyers, select courts, compete with each other, reject even favorable arguments if they do not advance the greater cause and, in general, employ methods and stratagems worthy of Sun Tzu’s Art of War.

Almost half the membership of the Supreme Court changed between the first and last of these cases. Although the ideological balance remained the same, the Court was moving distinctly further right. For all the public focus on Justice Kennedy’s “swing vote” as issues moved him from one bloc to the other, Coyle describes how “the real game-changer” was when Samuel Alito replaced the less conservative Sandra Day O’Connor in 2007.

The book begins with cases about two local school boards that voluntarily adopted racial preferences to address disparate opportunities for students and foster diversity as a community-wide value. The court held that such plans were unconstitutional. In his plurality opinion, Chief Justice Roberts declared that racial classifications were “illegitimate” if made “only” to achieve racial balance. Justice Breyer wrote an uncharacteristically lengthy and vehement dissent from what he viewed as the new court’s wholesale reversal of historic anti-discrimination principles: “It is not often in the law that so few have so quickly changed so much.”

Coyle’s next case is the attack on Washington, D.C.’s gun-control law, the most restrictive in the nation. Conservative activists had identified a host of challengers, only one of whom finally won on appeal. The D.C. government appealed the decision, rejecting advice from the pro-gun control Brady Center, thereby handing conservative activists — who could not have appealed because they had won — the ticket they had been seeking in their five-year battle to get a definitive ruling from the Supreme Court.

Applying his “originalist” approach to Constitutional interpretation, Justice Scalia reached into pre-Revolutionary War history to find support for individuals having firearms for hunting and self-defense. For Coyle, “It was an aggressive conservative Court taking on a long-sought objective on the conservative political agenda.” Ultimately, the court struck down the D.C. law. 

Coyle’s third case involves campaign finance reform. Traditionally, the court has underemphasized the potent influence of money in elections, which drives Congress to legislate on the subject in the first place. Instead, it has based law in this area on interpretations of free speech, an unsteady platform at best for dealing with laws produced by the arcane arts of legislative irresolution, compromise and patent self-interest.

Citizens United, a conservative political group, artfully concocted a challenge to this muddle of past decisions by producing “Hillary: The Movie.” During the 2008 presidential primary season, the movie and its advertising excoriated Hillary Clinton, in direct counterpoint to progressive activist Michael Moore’s “Fahrenheit 9/11” about President Bush and the war on terror.

The ultimate outcome was a Kennedy opinion that struck down most of the McCain-Feingold campaign finance reform law and the limits on corporate spending in federal elections. Coyle concludes that the effect was that “money, the lifeblood of American political campaigns ... would erupt like a gusher into congressional and presidential election contests. [It] would deepen an open vein of cynicism about the Court in a large segment of the American electorate, a wound first inflicted by the Rehnquist Court’s 2000 decision in Bush v. Gore, which handed the presidency to George W. Bush.”

In the book’s most thoughtful analysis, Coyle examines the full-bore attack against the Affordable Care and Patient Protection Act, or ACA.  Several state attorneys general challenged the law, the first case being filed seven minutes after President Obama signed the act. Coyle explores the government’s key strategy decision: whether to argue that ACA was justified by Congress’s power to regulate commerce or, alternatively as a tax because  the IRS would be enforcing penalties on those who did not purchase insurance. Although alternative pleading is not unheard of in the law, it was a debatable and gutsy strategic call to rest the president’s signature accomplishment and a seminal act of Congress on two disparate constitutional theories in the country’s highest court of appeal.

The conservative challengers’ prime attack was on the “individual mandate,” a core requirement of ACA just as it had been an essential and unremarkable feature of almost all significant health insurance reform proposals since the late 1980s. Some urged a novel theory, that penalizing people for not purchasing something amounted to regulating inactivity, a dangerous extension of congressional power. Five members of the court accepted that line of reasoning. However, in what was leaked as a last-minute change of heart and mind, Justice Roberts joined the four liberal justices in upholding the act on the basis of Congress’s power to tax.

Significant as the case was, and as betrayed as conservatives felt by the outcome, the decision may have been a pyrrhic victory for liberals. Since FDR’s New Deal legislation 80 years before, the Supreme Court had interpreted Congress’s commerce power expansively. Finding that the commerce clause did not legitimize the ACA has profound implications, well within Marcia Coyle’s bailiwick. Unfortunately, she did not address them, reportedly because the book’s deadline did not afford her the time needed to do so. 

This is a thorough book, but I often stumbled over the sheer amount of detail, particularly some detours into handfuls of tangential cases. The landmark race-preference cases, the book’s longest section, needed focus and concision rather than volume. In the gun case, Coyle says that Justice Scalia’s opinion leaving room for reasonable gun regulations stirred supporters to strategize their next host of challenges. As an astute observer who conducted candid interviews with the participants, Coyle might have enhanced readers’ interest by speculating about the nature of those challenges.   

That said, Marcia Coyle nails the points of complicated cases. Despite what many readers may take as a liberal bias in her conclusions, she carefully describes the positions of all sides. Her ongoing missives from the front lines of these battlefields — a reporter trusted to have access to both sides — will be especially valuable as these forces clash again and again. 

Tom Phillips practiced law and politics for 35 years. He now does a little political blogging from an outpost in Chicago.

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