The Oath (14 page)

W
ith her dissent in
Ledbetter
, Ginsburg executed a nimble feat of jujitsu, turning a setback into a possible long-term victory. But in that second year of the Roberts Court, there was no mistaking the full picture of what was happening. The era of good feelings among the justices lasted precisely twelve months. Unanimous opinions in year two plummeted from 45 percent to 25 percent. More importantly, in contested cases the conservatives were winning, almost all the time. A full third of the cases were decided by a margin of 5–4, the highest percentage in more than a decade. The liberal quartet of Stevens, Souter, Ginsburg, and Breyer
was able to assemble a majority in only a quarter of them.

The conservative victories ranged over the Court’s docket, but some of the most important came in areas that especially mattered to the chief justice. In a famous decision from 1968, Chief Justice Warren held that taxpayers had the right to sue the government to block expenditures that might violate the First Amendment’s prohibition on establishment of a state religion—that is, to maintain the barrier between church and state. Warren’s theory in
Flast v. Cohen
was that if taxpayers did not have standing to bring these suits, there would be no effective way for the courts to examine possible constitutional violations. Conservatives like Roberts had targeted the
Flast
case for decades, part of their larger effort to rein in standing doctrine. In
Hein v. Freedom from Religion Foundation
, the five conservatives chipped away at the
Flast
precedent, holding that taxpayers lacked standing to challenge any action by the executive branch on church-state grounds.

In a case with the evocative title of
National Association of Home Builders
v. Defenders of Wildlife
, the Court shut the courthouse door to plaintiffs in a different way. The majority held that an environmental group could not stop the Environmental Protection Agency from returning jurisdiction over water pollution permits to states.

In death penalty cases, where Kennedy often joined the liberals, he voted with the other side to uphold two planned executions. One case involved jury selection in death penalty cases, and the other weighed whether the defendant was entitled to a hearing on the issue of ineffective assistance of counsel.

Even one vaguely comic case from Alaska turned into a political standoff. On January 24, 2002, the Olympic Torch Relay passed through Juneau on its way to the Winter Games in Salt Lake City. The principal of a local high school allowed students and staff to skip class and watch from the sidewalk as the runners passed by. Joseph Frederick, an eighteen-year-old senior, stood across the street from the school with a group of friends, with a fourteen-foot banner that said, BONG HiTS 4 JESUS. The principal told the group to take it down, and all except Frederick agreed. The principal forcibly took the sign from Frederick and later suspended him for ten days.

The issue in the case was whether the First Amendment protected Frederick’s display. At the time, Deborah Morse, the principal, said she removed the sign because she thought it encouraged drug use. In fact, it remains unclear to this day what, if anything, the sign meant. Frederick always denied that he was talking about drugs; indeed, he maintained that the whole thing was a joke and “that the words were just nonsense meant to attract television cameras.” Still, in
Morse v. Frederick
, the Court agreed to weigh the limits of students’ First Amendment rights.

The subject had a rich history. In 1969, at the height of the Vietnam War, the Court ruled that three students in Iowa could not be sent home from their local schools for wearing black armbands to protest the war. In
Tinker v. Des Moines Independent Community School District
, the most famous opinion Abe Fortas wrote during his brief tenure on the Court, he said, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In the years since, though, conservative justices had cut back on the freedoms granted to students, which they did in
Morse v. Frederick
as well.

The dueling opinions, by Roberts for the majority and Stevens for the dissenters, took issue over the less-than-momentous question of what
Frederick’s slogan meant. “The message on Frederick’s banner is cryptic,” Roberts wrote. “It is no doubt offensive to some, perhaps amusing to others. To still others, it probably means nothing at all.” Roberts and the four others were willing to trust the principal’s conclusion that the banner encouraged drug use. On the other hand, Stevens took Frederick at his word: the banner was gibberish and he only wanted to get on television. The question was whether, in a matter involving freedom of speech, the principal or the student should receive the benefit of the doubt. Roberts won by backing the school authorities. (Thomas wrote a separate concurring opinion, arguing that
Tinker
should be overturned because students should have no free speech rights
at all
under the First Amendment.)

Morse v. Frederick
could be dismissed as a silly aberration, but the overall tenor that year was unmistakable, and deadly serious. There was no doubt which one of the liberals was most traumatized by the Court’s sharp turn to the right. It was Stephen Breyer.

Breyer was always very clear about his happiest professional memory. He had grown up in San Francisco, gone to Stanford and Harvard Law School, clerked for Justice Arthur Goldberg, and then returned to Harvard in the late sixties to teach. Less than a decade later, though, Breyer surprised his colleagues in Cambridge by returning to Washington. It was common for Harvard law professors to work in the executive branch—much later, Obama would practically deplete the faculty—but Breyer went to work in Congress. He became chief counsel to the Senate Judiciary Committee, which was then chaired by Edward M. Kennedy.

Almost every morning, Breyer had breakfast with the top lawyer for Strom Thurmond, who was then the senior Republican on the committee. Together, cordially, the two staffers mapped out plans for the committee. Of course Kennedy and Thurmond were ideological adversaries, but they directed their representatives to find areas of common ground. Indeed, it turned out to be a remarkably successful legislative partnership, producing landmark laws that deregulated the trucking, airline, and natural gas industries. Breyer loved that time in his life.

His tenure on the Judiciary Committee staff also yielded a very tangible benefit. In 1980, when Breyer was just forty-two, President Jimmy Carter nominated him to the First Circuit. Breyer was so popular
among the senators on the committee, the Republicans as well as the Democrats, that he was confirmed
after
Carter had lost the presidential election to Ronald Reagan. Later, when the political environment on judicial nominations turned poisonous, this kind of bipartisanship on a circuit court nomination became inconceivable. But this period—this golden age, as Breyer recalled it—became the model that he hoped to replicate on the Supreme Court.

Breyer never lost respect for the legislators he came to know during his days on Capitol Hill. He believed in the Congress, and in government generally. To him, compromise was a virtue, not a vice. The point was to give everyone a say and reach a result that … 
worked
. Breyer loved that word (and its cognates) and used it incessantly. “Our constitutional history,” Breyer wrote in his book
Active Liberty
, published in 2005, “has been a quest for workable government, workable democratic government, workable democratic government protective of individual personal liberty.” Five years later, Breyer wrote another book, which he called
Making Our Democracy Work
.

After Clinton appointed Breyer to the Court in 1994, Breyer dissented in most of the major cases up to and including
Bush v. Gore
, in 2000. But then Breyer had had his own brief period as a force in the majority, thanks largely to O’Connor. During George W. Bush’s first term as president, as O’Connor grew more and more alienated from the Republican in the White House, Breyer and O’Connor became a formidable team. They also shared a genuine fondness for each other, for they had similar practical, problem-solving temperaments. They traveled the world, giving speeches and advice to judges and legislators. (After the 9/11 attacks, they were stranded in India together.)

The highpoint of Breyer’s influence can be marked with precision. At the end of the term in June 2005, the Court decided two cases about public displays of the Ten Commandments, both by votes of 5–4. The Court rejected a decision by local authorities to post the Commandments in Kentucky courthouses but at the same time allowed the Commandments to remain in a public park, near the state capitol, in Austin, Texas. Four justices thought both displays should remain; four others thought both should be taken down.

Only Breyer was in the majority in both cases. He endured some mockery for his seemingly inconsistent positions, but his reasoning made sense. The Kentucky Commandments, which everyone in the courthouse could see, were clearly intended as a provocation, and the
display had been controversial from the moment it was posted. In Texas, on the other hand, the monument with the Commandments drew no notice at all for forty years. (The plaintiff in the case was a homeless man who sometimes lived in the park.) Breyer thought the difference in public reactions to the displays was critical. The Texas display “has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of
degree
this display is unlikely to prove divisive,” Breyer wrote. But he added, referring to the Kentucky display, that “in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this long-standing, pre-existing monument has not.” It was, to use Breyer’s favorite word, a workable compromise.

In any case, Breyer’s moment was brief. The decisions in the Kentucky and Texas cases were announced on June 27, 2005. Four days later, O’Connor announced her departure from the Court.

When Breyer was appointed, he was often described, with good reason, as a technocrat. He taught antitrust and administrative law at Harvard, and he was more deeply steeped in those arcane specialties than in the constitutional law at the center of the Court’s work. Once Breyer settled into his new position, however, he tried to come to terms with the Constitution and the place of the Court in the broader history of the country.

It is easy, if unwise, to romanticize the history of the Supreme Court. During John Marshall’s tenure as chief justice, from 1801 to 1835, the Court built a noble template for American democracy. Marshall himself, more than any framer of the Constitution or even any president, defined the terms of separation of powers, the breadth of federal power, the relationship between the national government and the states, and the place of the Supreme Court in the government of the young nation. Thanks to Marshall, the Court made a glorious debut.

For the next twelve decades, however, the Supreme Court was for the most part a malign force in American life. The landmarks of this era, which still constitutes more than half the history of the Court, were nearly all negative. In 1857, to the eternal shame of the institution, the Court held in
Dred Scott v. Sanford
that African Americans were
property and that they could never possess the rights that belonged to human beings. This decision hastened the Civil War and was technically overruled by the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. The Court then proceeded to give those amendments such cramped and narrow meanings that the justices allowed African Americans to endure perpetual discrimination, and much violence, for a great many more years. In
Plessy v. Ferguson
, from 1896, the Court gave its formal imprimatur to American apartheid by approving Louisiana’s system of separate railcars for blacks and whites. In 1905, the Court decided
Lochner v. New York
, rejecting a state law that limited the number of hours bakers could work. This dismal decision set off several more decades when the Court dedicated itself to obstructing legislative initiatives that might protect the nation’s less powerful citizens.

Earl Warren’s tenure as chief justice ushered the United States into the modern era of race relations and, in some deeper sense, saved the Supreme Court as an institution. Warren recognized that a court that had the legend
EQUAL JUSTICE UNDER LAW
carved into its façade could no longer tolerate state-sponsored segregation. In just his second year as chief justice, on May 17, 1954, Warren steered his colleagues to a unanimous decision in
Brown v. Board of Education
. Warren himself wrote the opinion in simple, direct prose. “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place,” he wrote, formally overruling
Plessy v. Ferguson
.

The case, and the Warren Court’s decisions on race, became Breyer’s special interest. On the fiftieth anniversary of
Brown
, Breyer volunteered to be the Court’s emissary to the official celebration, in Topeka, Kansas, where the case began. “As a member of the Supreme Court, I am here today to represent that Court, not nine individual Justices, but the institution itself—an institution as old as the Republic, charged with the responsibility of interpreting the Constitution of the United States,” Breyer told the crowd, including President Bush. “May 17, 1954, was a great day—many would say the greatest day—in the history of that institution,” he continued. “Before May 17, 1954, the Court read the Constitution’s words ‘equal protection of the laws,’ as if they protected only the members of the majority race. After May 17, 1954, it read those words as the post–Civil War Framers meant them, as offering the same protection to citizens of every race.” (Not everyone on the Court was so moved by the anniversary; William Rehnquist also gave a speech on May 17, 2004, and he didn’t even mention
Brown
.)