Monday, September 22, 2014

At Supreme Court, Nine Clashing Friends in a Bottle

      Justice Oliver Wendell Holmes Jr. is famously, but perhaps apocryphally, quoted as having described the Supreme Court as “nine scorpions in a bottle.” The description accurately portrayed the court of the early 20th century, but the phrase is now thought to have been coined in the 1950s by Alexander Bickel, a law clerk to the notoriously pugnacious Felix Frankfurter at a time when several of the justices often had their stingers out.
      Today, by all accounts, including their own, The Nine get along just fine. “We’re all good friends,” says Justice Antonin Scalia, an opera lover like Ruth Bader Ginsburg and now an occasional hunting companion for Elena Kagan.
      However friendly they may be, the nine justices of the 2014 Roberts Court clearly have their own personalities and, more importantly, their own views on legal issues. For a quick guide to those personalities and those views, one can profitably spend a couple of hours with American Justice 2014: Nine Clashing Visions on the Supreme Court, a top-hits account of the court’s most recent term by journalist-author-law professor Garrett Epps.
      Epps, who now teaches at the University of Baltimore Law School, has spent the past few years as an itinerant member of the Supreme Court press corps, contributing reported opinion pieces to (Disclosure: Epps is a friend and college classmate.) American Justice is a quickie book, published this month [Sept. 10] before the actual end of the October 2013 term. As Epps notes, each Supreme Court term does not end with the final decision in late June, but continues right up to the beginning of the new term on the traditional First Monday in October.
      Speed was accomplished by dispensing with footnotes or index and by adopting a simple format: nine chapters, profiling each justice through the lens of the justice’s most distinctive opinion of the term. Epps opens with a profile of Chief Justice John G. Roberts Jr. tied to the term’s first major decision: the 5-4 precedent-reversing decision to throw out so-called “aggregate” limits on campaign contributions (McCutcheon v. FEC). He ends with Ruth Bader Ginsburg’s indignant dissent from the end-of-term ruling to allow employers a religious objection to providing contraceptive coverage in employee health plans (Burwell v. Hobby Lobby Stores).
      Epps sketches the justices impressionistically, with his likes and dislikes plainly visible. He likes Elena Kagan for her “brilliant mind” and “razor-sharp it.” He admires Ginsburg for using the birth control dissent “to give a voice to thousands of female workers around the country.”
      In like vein, Epps applauds Sonia Sotomayor (“America’s Justice of Hearts”) for her deeply personal dissent from the ruling to allow states to ban racial preferences in university admissions (Schuette v. Coalition to Defend Affirmative Action). Stephen Breyer may come across to some as a bit of a stuffed shirt, but Epps finds him “unfailingly polite,” “always engaged,” and, more important, committed to a view of government empowered by democratic participation to meet the challenges of the times.
      The conservative justices fare less well in Epps’ telling. He contrasts Roberts’ disavowal at his confirmation of any “agenda” with the court’s record of adopting Republican positions on such contentious issues as campaign finance, affirmative action, public employee unions, and so forth. Antonin Scalia is depicted as expressly championing an ideological, anti-government agenda. Epps credits him with partial success but then mocks him for his alarmist dissents in gay rights cases that lower courts are now citing in pro-gay marriage rulings.
      Epps belittles Scalia one more time by noting Samuel Alito’s emergence as “the new sheriff in town” for authoring the term’s last two decisions: Hobby Lobby and the rebuke to public employee unions (Harris v. Quinn). But the portrait of Alito as a justice who writes opinions “in take-no-prisoners style” with “contempt for those who disagree with him” is hardly flattering.
      Of the ardent conservatives, Clarence Thomas escapes mostly unscathed in Epps’ telling. Epps notes that Thomas has said he drafts his opinions before hearing arguments and he is “notoriously unwilling to compromise his own views” later. As for Thomas’ eight-year silence on the bench, however, Epps excuses it as the self-defensive legacy of Thomas’s slights from white liberals both before and since taking the bench.
      Epps insightfully captures Anthony M. Kennedy as a justice too full of himself but with an innate sense of justice that harks to “a small-town America” of yesteryear. Epps favorably depicts Kennedy’s pivots between the conservative and liberal blocs as the product not of finger-to-the-wind judging but of deeply held views on personal liberty and dignity.
      Weightier books are coming soon, both from card-carrying liberals who say the court’s conservative orientation these days is of a piece with the role it has played through most of history. Erwin Chemerinsky, dean of the University of California-Irvine Law School, presents that argument in The Case Against the Supreme Court [Sept. 25]. Ian Millhiser, legal editor of the progressive web site Think Progress, will expound the same position in Injustices, to be published in March 2015.
      Epps undoubtedly agrees with much of that critique, but more with regret than with outrage. He closes by noting that President Obama and Roberts both assumed their current positions with dreams of reducing the hyperpartisanship prevalent in Washington and the nation. For both men, he writes, “the fabric of this dream had melted into air, into thin air.”

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