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Ask the author: Garrett Epps on clashing visions on the Court

Screen Shot 2014-11-12 at 10.10.37 AMThe following is a series of questions posed by Ronald Collins on the occasion of the publication of American Justice 2014: Nine Clashing Visions on the Supreme Court (University of Pennsylvania Press), by University of Baltimore law professor Garrett Epps, who is also the Supreme Court correspondent for The Atlantic Online.

Welcome, Garrett. Thank you for taking the time to participate in this Question and Answer exchange for our readers. And congratulations on the publication of your latest book, which is available in hardback and Kindle editions.     

Question: This work is different from your other books, at least in its approach. Tell our readers a little bit about your approach in examining the Court’s October Term 2013.

Epps: I have been writing about the Court for years. From my teaching post at the University of Oregon, I had written a book, To An Unknown God: Religious Freedom on Trial (2001), that was a history of one case. Then I got the chance to come to the University of Baltimore and renew my journalistic ties in D.C. I began writing from the Press Gallery for The Atlantic Online in 2010 and since then I have written about 200 short pieces for the Web analyzing arguments and decisions. When you focus on one case, you see certain things; when you write short pieces about cases and facts you begin to perceive other things, but only in jumbled and partial form. Then the University of Pennsylvania Press approached me and asked me to write a very short book (and e-book) about the October 2013 Term. That assignment gave me a chance to try to see a period of time in the life of the institution as a whole, at least my vision of it.

I wanted to write something accessible to non-lawyers and fun to read; I wanted to provide some knowledge and insight into each Justice and the varying judicial approaches I have seen; and finally I wanted to write not the consensus view but my own, which has a definite point of view. Because the book had to be written very quickly, I thought going in – correctly – that working fast would make me confront what I really think about cases and Justices, and say it without a lot of spare verbiage.

Question: Your book opens with a 1942 quote from Judge Learned Hand: “This much I think I know — that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.” Tell us why you selected that quote.

Epps: At the end of the Term, I thought that the Court had really displayed a fairly extreme side of its nature, in cases like McCutcheon v. Federal Election Commission, Harris v. Quinn, and Burwell v. Hobby Lobby Stores, Inc. The results were hard-line and the rhetoric was hard-edged. By the time of Justice Sotomayor’s dissent in the Wheaton College order, a few days after the last opinion announcement in June, it was plain to see that this Court is often very precisely divided on partisan lines. The final chapter of the book is called “Justice in Red and Blue,” and argues that this Court is split by party in a way no other court has ever been.

Question: You write: “In his desire for harmony, acclaim, and hegemony, the Chief [Justice] was also fighting himself.” Can you say more about your thinking on this point?

Epps: In a poignant way, John Roberts is a kind of mirror image of Barack Obama. President Obama thought he would bridge the partisan divide in Washington by explaining himself to Republicans and getting them to agree. But that’s not how politics works. In my opinion, when he came on the Court, Chief Justice Roberts also believed that, because he is so intelligent and such a skilled writer, he would win over those who disagreed. That of course did not happen; it could not have happened. As I say at the end of the book, “For both men, as of June 2014, the fabric of this dream had melted into air, into thin air.”

Question: Six of your nine chapters on the Justices involved five-to-four judgments, while two involved nine-zero judgments, and one a six-to-two ruling. That said, there were two other important constitutional cases decided by a unanimous judgment –McCullen v. Coakley and Riley v. California. There was also the Chief Justice’s majority opinion in Bond v. United States – an interpretation of the Chemical Weapons Convention Implementation Act of 1998 (or that is how the majority viewed it) — in which the judgment was unanimous. What do you make of such unanimous judgments with the Chief Justice writing the lead opinion? Might this become one of the hallmarks of the Roberts Court, or do you see such cases as rather aberrational?

Epps: There’s no question that OT13 saw many more unanimous judgments than previous Terms. At the same time, however, McCullen and Bond were what Dahlia Lithwick called “faux-nanimous.” Behind the judgments are often two sharply divergent opinions. In one of those “unanimous” cases, Bond v. United States, Justice Antonin Scalia read his angry concurrence from the bench just as if it were a dissent – something that has seldom if ever happened before. In Bond, the majority held the Chemical Weapons Convention Implementation Act was valid but couldn’t be applied to the petitioner; the minority wanted to hold the statute facially invalid. That’s a curious form of unanimity.

Question: In American Justice you select various constitutional law opinions from the October Term 2013 to illuminate the views of each of the nine Justices currently on the Court. In that regard, you chose the McCutcheon case as a good case to illustrate the Chief Justice’s jurisprudential views. In that regard, the Chief Justice has authored more First Amendment freedom of expression opinions (twelve of thirty-five) than any of his colleagues on the Court since he arrived in 2005. Do you discern any notable distinguishing features in the Chief Justice’s free speech jurisprudence?

Epps: In the opening sentence of McCutcheon, he says: “There is no right more basic in our democracy than the right to participate in electing our political leaders.” In that reading, the most protected participation is not the right to vote, but the speech-based right to spend money to speak independently and to contribute money to political figures. To the Chief, I think, democracy is a process in which those who have money and power necessarily and properly wield more influence than those who do not. His greatest concern with fairness in McCutcheon was that famous entertainers can raise more money than rich donors were allowed to give. This was unfair to the donors; the fact that rich donors can give more than ordinary citizens was not worthy of mention. I conclude that the Chief thinks that a level playing field is not simply impermissible but undesirable; that the hills from which some speak, and the valleys in which others are trapped and muffled, are what the Founders had in mind.

Also revealing in that opinion was his rather grand proclamation that “[i]f the First Amendment protects flag burning, funeral protests, and Nazi parades – despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.” (My italics.) I think the Chief honestly believes he is protecting an endangered minority – the very rich – against the intolerance of a hostile, bigoted majority.

Question: Chapter three in your book is titled “Empathy for the Devil: Justice Antonin Scalia – Dissenting, Windsor v. United States (Redux).” Two questions: (1) Beyond the allusion to the 1968 Rolling Stones song, how did you come upon that title to describe Justice Scalia’s Windsor dissent? And (2) why did you pick a case from the 2012 Term?

Epps: Justice Scalia heralded the arrival of OT13 by proclaiming in an interview in New York Magazine that he believed in the Devil, so that’s how Satan got into the mix. I find Scalia a difficult Justice to like. But I felt some empathy for him as OT13 wore on. For one thing, his dissent in Windsor came back to bite him – a number of the lower-court judges who struck down same-sex-marriage bans quoted not only Justice Anthony Kennedy’s majority opinion for support, but also the Scalia dissent. At the very least, that opinion made it easier to write those opinions. And note that last week, when the Sixth Circuit became the first federal court of appeals to uphold bans on same-sex marriage, the opinion was written by Judge Jeffrey Sutton, a widely admired judge who was a Scalia clerk two decades ago. Judge Sutton’s opinion is very even in tone, clothed in the language of moderation. It does not cite Justice Scalia’s dissent once; indeed, Justice Scalia’s name does not appear in the opinion at all. That silence, to me, spoke volumes.

So upon reflection Justice Scalia might secretly wish he had chosen his words more carefully. Couple that with the fact that Scalia is now seventy-eight – nearly the age Justice Harry Blackmun was when, in Planned Parenthood of Southeast Pennsylvania v. Casey (1992), Scalia in a dissent – probably the most deliberately cruel dissent I have ever read in a Supreme Court case – taunted his fellow Justice with the prospect of his imminent mortality.

Justice Scalia is a giant in the Court’s history, but many a giant eventually meets his Jack. I think that Chief Justice Roberts, with the help of Justice Samuel Alito, is shunting Justice Scalia aside as chief intellect of the conservative bloc on the Court. Justice Alito got two plum assignments for the end of OT13 – Hobby Lobby and Harris v. Quinn – while Scalia, for whatever reason, did not even appear on the bench on the final day. His influence, I think, is waning, and that melancholy twilight is one that any human being with a heart can sympathize with. That’s also why I picked a case from OT12. I think his influence in OT13 was remarkably small.

Question: In the chapter on Schuette v. Coalition to Defend Affirmative Action – the one titled “Justice of Hearts: Justice Sonia Sotomayor” – you laud Justice Sotomayor’s dissent as giving “voice to those who felt themselves excluded from the Roberts Court’s emerging jurisprudence of majority privilege.” As you noted, Justice Stephen Breyer voted with the majority. Given that, do you see him as part of that “emerging jurisprudence”?

Epps: “I agree with the plurality that the amendment is consistent with the Federal Equal Protection Clause,” Breyer wrote. “But I believe this for different reasons.” He did not join Kennedy’s endorsement of white majorities deciding racially fraught issues. His separate opinion proposed a much narrower principle to explain the constitutionality of an amendment to the Michigan constitution that prohibited the use of affirmative action by public universities: the voters had simply removed the decision from an unelected administrative body – the universities’ faculties – and put it into the democratic process. That provides a marker down the road for a Justice or a Court that wants to construe the decision in Schuette narrowly. So, no, the emerging jurisprudence of majority privilege is not one of which Justice Breyer is a part.

Question: Chapter 5 of your book is titled “Big Brother: Justice Anthony Kennedy.” That chapter is devoted to his majority opinion in Hall v. Florida, the case involving the death penalty for a man who was intellectually disabled. “Central to Kennedy’s judicial thought,” you maintain, “is a concept of ‘dignity,’ of the inviolable private liberty of the individual, and of a sense that the state should not insert itself into certain intimate areas of life.” How far, do you think, does that logic apply when it comes to contraceptive and abortion cases, where a woman’s dignity and liberty are also at stake?

Epps: At the end of OT13, Justice Ruth Bader Ginsburg publicly said that some of her male colleagues have a “blind spot” when it comes to women’s needs and rights. Justice Kennedy is a man of decent impulses, but I think he falls within that description. A Big Brother protects, advises, nurtures. He wants what’s best for you, and believes that respecting your dignity involves protecting you even from yourself. As Kennedy wrote in. Gonzales v. Carhart, he believes women will come to regret having abortions because they are giving up the chance to be mothers, and he believes the state can intervene to protect them against that regret. He made that statement even though he admitted there is no objective evidence for it. It comes out of his own sense of the world and of who he is.

Question: You discuss Justice Stephen Breyer’s constitutional jurisprudence in connection with his majority opinion in National Labor Relations Board v. Noel Canning, the recess appointments case in which Justice Scalia joined in the judgment but nonetheless wrote a concurrence in which the Chief Justice and Justices Clarence Thomas and Samuel Alito joined. Notably, Justice Anthony Kennedy sided with the majority. Given that, what is your sense of Justice Breyer’s ability to forge such majorities? Or was the Noel Canning case the exception?

Epps: Justice Kennedy is the bull elk of this Court. I don’t think anybody leads him; he goes where he wants. It’s possible that Justice Breyer’s draft opinion simply convinced Justice Kennedy that his approach was more practical and more faithful to the Constitution than the minority’s. In his dissent Justice Scalia called the Recess Appointments Clause an “anachronism” which really shouldn’t be given any effect at all. That’s a fairly radical view to write into law, and might give implicit permission to other judges who want to decide that other parts of the Constitution are obsolete.

Question: “On the Roberts Court, for perhaps the first time ever,” you maintain, “the party identity of the Justices seemed to be the single most important determinant of their votes.” Yet of the eleven “major OT13 cases” you list in Appendix C, five were decided by a five-four vote, five by a nine-zero vote, and one by a six-two margin. How does your party-identity thesis explain this?

Epps: One need not – and I do not – claim that the partisan identity of a Justice will determine his or her vote in all close cases. I make a different claim: the first thing one needs to know about any member of this Court is not where he or she is from, or what law school he or she graduated from, or what he or she did before ascending to the bench; it is what party and what President put him or her there. And that is relatively new in the Court’s history.

As for the numbers you cite, not every closely contested case, not even every ideologically fraught case, is a case with a partisan valence. When those cases –Voting Rights Act cases, labor cases, campaign-finance cases, Hobby Lobby – come up, the Court is likely to fracture on party lines. There is no Republican Justice who consistently votes to the left of any Democratic Justice, or vice-versa. That’s historically an anomaly; remember that the last three “liberals” to retire were Republicans, and the last Democrat to retire, Byron White, was a relative conservative and a critic of Roe v. Wade. That kind of ideological mélange is simply unthinkable today.

Question: In the Term that American Justice covers, Justice Antonin Scalia authored more than twice as many opinions (eight majority, seventeen separate) than did Justice Elena Kagan (seven majority/plurality, three separate). How, if at all, do you think that a Justice’s output affects his or her influence both on and off the Court?

Epps: I haven’t given this much thought, but there might be a weak inverse correlation. One of Scalia’s leading traits is his eagerness to write solo dissents or concurrences. In an interview for the C-SPAN special program on the Court some years ago, he said, “hey, dissents are more fun to write, I’ve got to say that, because when you have the dissent, it’s yours. You say what you want, and if somebody doesn’t want to join it, who cares?” So an eagerness to write exactly what he thinks may make it harder for him to form alliances with other Justices.

By contrast, Justice Kagan, I think, is very concerned with making alliances, and equally concerned with not making enemies needlessly; that may lead her to keep her powder dry at times when a Thomas or a Scalia might let fly with a stinging solo dissent or a pernickety concurrence.

Question: What sort of factors do you think constrain the Chief Justice in how he might vote in a constitutional case?

Epps: I think that the Chief has deeply held and sincere beliefs about the Constitution, and that those beliefs are very, very conservative. I think the countervailing pressure on him is his sincere concern for the Court as a national institution. I think he worries about getting the Court out on a limb, and that may lead him to seek a more incremental approach to change in the law. But his increments are steps to the right. He is, as many observers have said, playing a long game, and he is very good at it.

Question: You write: “The two men [Justices Scalia and Thomas] frequently interpreted constitutional provisions quite differently.” What differences, if any, do you see between Justice Scalia’s notion of constitutional originalism and that of Justice Thomas? Were any of those differences on display in the October Term 2013?

Epps: Well, let’s first hear from Justice Scalia: “I am an originalist. I am a textualist. I am not a nut.” That referred to Scalia’s willingness to defer to the precedent of the Court. Justice Thomas has no such willingness. He is willing to tear out centuries of precedent, root and branch, because of his own individual, subjective belief about the “original understanding” or “original public meaning” of a term or clause in the Constitution.

I would also argue that Scalia is a textualist first and an originalist second; most of his “originalism” consists of looking up words in old dictionaries. Justice Thomas looks much farther afield. Look at his dissent in Brown v. Entertainment Merchants Association, which ranges into seventeenth-century childrearing techniques to interpret the eighteenth-century First Amendment and justify his conclusion that there’s no First Amendment right to direct speech to minors. I can’t think of another Justice, living or dead, who would have written an opinion like that.

Question: Casting aside the commonplace “Roberts Court” terminology, you suggest that the October Term 2013 might be better understood as that of the “Alito Court.” Can you say a few words about why you think that?

Epps: Since 1970 or so, the Court has slowly moved to the right, but until the past few years, it did so in very balanced fashion. There were few sudden lurches. The change came with the ascent of Justice Alito to the bench in place of Justice Sandra Day O’Connor. O’Connor was a conservative centrist; Alito is a movement conservative. He virtually never diverges from the conservative line. As a result, in a number of areas, the Court’s jurisprudence does show a discontinuity – campaign finance being one, abortion being another. In addition, Justice Alito is a very smart and intellectually aggressive man; I think he has almost supplanted Justice Scalia as the go-to ideologist of the four-Justice conservative bloc. We are in the twilight of the Scalia era. Whatever happens behind the velvet curtain, that is an actuarial fact. Depending on future appointments, we may be at the dawn of the Alito period.

Recommended Citation: Ron Collins, Ask the author: Garrett Epps on clashing visions on the Court, SCOTUSblog (Nov. 12, 2014, 10:00 AM),