The U.S. Supreme Court is majestic, immensely powerful and deceptively fragile. It commands by the power of reason, and its justices are, as the great Robert Jackson once observed, not “final because we are infallible, but we are infallible only because we are final.” And yet Americans today increasingly regard the court in an unfavorable light. In 2001, almost two-thirds of Americans approved of the court’s work; by last year, that number had dropped to less than half.
“Uncertain Justice: The Roberts Court and the Constitution” takes the measure of the court at this puzzling juncture. The book is full of bright and unconventional wisdom, as one might expect from its author, the venerable law professor Laurence Tribe, here teamed with a young collaborator, Joshua Matz. They portray a court tip-toeing into new areas of constitutional law, divided and without a clear sense of mission or purpose.
Rejecting tiresome conventions of court reporting — liberals vs. conservatives, restraint vs. activism — the authors bring fresh insight to the court’s work. Regarding this court’s most reviled ruling, for instance, the authors present a balanced accounting of Citizens United, which did not, as is often claimed, create the notion that corporations are people, endowed with certain rights (that principle is far older than the current court). Nor did it ensure that corporate money would always carry the day in national elections (just ask Mitt Romney).
They are similarly clear-eyed in considering complicated questions of privacy and guns, two areas that pit historic ideals against modern technology and mores. But whether the Second Amendment confers an individual right to bear arms or not — Justice Antonin Scalia, writing for a five-member majority of the court, for the first time in its history found that it did — the Heller ruling nevertheless left ample room for gun control, a fact wisely noted by Tribe and Matz.
They are less convincing in examining the court’s record in business cases. The justices, these authors say with confidence, “do not think of themselves as intentionally favoring big business over ‘the little guy.’” But the justices have severely limited class-action lawsuits, denied plaintiffs access to the courts and struck down legislative attempts at regulation. The justices may not think of themselves as carrying water for the chamber of commerce at the expense of consumers, but that’s precisely what they’re doing.
That’s not the only example of Tribe and Matz pulling their punches. Chief Justice John G. Roberts Jr. is described as “the best Supreme Court advocate of his generation,” a “gifted writer, skilled strategist, and brilliant legal mind.” Scalia is credited with “considerable wit, erudition, and rhetorical talents.” Clarence Thomas, they contend, is the source of “innovative, originalist views of constitutional law.”
Fine. But one could also note that Roberts, who has declaimed on the importance of a unified court, has conspicuously failed to deliver it. One might call Scalia witty but also note that he has vilified homosexuals, alienated his colleagues, gone hunting with a litigant whose case was pending and failed to win a single convert to his method of judicial interpretation. And Thomas may be innovative, but he’s also isolated, ineffective and so wildly out of touch that even Scalia occasionally finds him baffling. Remarking in 2008 on Thomas’ willingness to use originalist theory to upend whole areas of settled law, Scalia famously compared their approaches: “I’m a textualist and an originalist, not a nut.”
The gentle tone of “Uncertain Justice” calls attention to the connections of the authors. Written by a professor who relishes his relationship with the court and a young associate who is about to clerk for Justice Anthony Kennedy, their work goes out of its way to view the justices in the most positive light. That doesn’t keep the authors from offering criticism, but it’s hard to shake the feeling that they’re going too easy on justices who have produced more than their share of unprincipled decision-making in areas as disparate as workplace discrimination, voting rights, free speech and affirmative action.
No such inhibitions restrain Bruce Allen Murphy, a distinguished historian and professor. His biography of William O. Douglas was a controversial blend of admiring and withering. “Scalia: A Court of One” represents his first foray into the current court.
This is a full biography, and Murphy thus traces the justice from his New York City boyhood to the present. Scalia, who appears not to have cooperated with the author, is presented as brilliant and cantankerous and as a scheming careerist, tailoring his legal work and even his opinions as an appellate judge to gain the attention of potential political patrons.
That line of argument isn’t always convincing. The record amply supports a critique of Scalia as a crafty ideologue but doesn’t close the case for seeing him as a man perennially on the hunt for a promotion.
Murphy is better when it comes to examining Scalia’s work as a justice. In one sense, it’s a shame to have to devote such effort to deconstructing originalism, which long ago ceased to be taken seriously as a method of deciding cases, but Murphy gamely takes on the task.
In short, Scalia’s argument is that the meaning of the Constitution is fixed and is best understood by assessing its “public meaning” at the time of its adoption. That’s no small task and certainly not one best left to a politically motivated advocate. Nevertheless, in case after case, Scalia scours the historical record and finds, lo and behold, that it almost invariably supports whatever the National Republican Committee would like it to.
This is neither historically nor legally defensible, and it’s especially galling that Scalia embarks on it while all the time proclaiming that it’s an act of judicial humility. Murphy does Scalia the unwarranted honor of treating originalism seriously but does not flinch when he gets to the bottom line: At least in Scalia’s hands, originalism is not a method of judicial interpretation, it is a device to import his values into the Constitution.
Both of these books examine a work in progress — Roberts will be chief justice for many more years, and Scalia, despite his age, shows no signs of slowing down. The court and its most provocative justice may yet surprise. In the meantime, however, it’s easy to see why America is losing faith.
Newton is The Times’ editor-at-large and author of “Justice for All: Earl Warren and the Nation He Made” and “Eisenhower: The White House Years.” He is co-author, with Leon Panetta, of the forthcoming: “Worthy Fights: A Memoir of Leadership in War and Peace.”
The Roberts Court and the Constitution
Laurence Tribe and Joshua Matz
Henry Holt: 416 pp., $32
A Court of One
Bruce Allen Murphy
Simon & Schuster: 656 pp., $35