The Oath (40 page)

There was no doubt about the least desirable assignment. One justice always had to serve on the cafeteria committee, which dealt with the windowless and forlorn diner-style restaurant located in the Court’s basement. By tradition, this assignment went to the junior justice. Because Breyer spent eleven years with the least seniority, he put in the most time on cafeteria matters. In his characteristically earnest way, Breyer spearheaded the introduction of wrap sandwiches, which he remembered fondly from the courthouse cafeteria in Boston. He mediated conflicts in matters of social class; Supreme Court police officers wanted meatloaf and mashed potatoes, while the law clerks demanded tofu. To address the persistent deficits generated by the enterprise, Breyer tried, with mixed success, to arrange for tour groups to be deposited within tempting distance of the cafeteria.

Kagan, now the newest justice, took another approach. Just as she brought a food-and-fun philosophy to Harvard Law School, she tried a similar experiment at the Supreme Court: she engineered the acquisition of a frozen yogurt machine in the cafeteria. It was perhaps testimony to the dour nature of life at the Supreme Court that such a modest enhancement was so celebrated. Even Roberts took to saluting Kagan’s frosty coup in his speeches.

Kagan, who sometimes referred to herself as the Frozen Yogurt Justice, made her presence felt in more jurisprudentially significant ways as well, in large part thanks to her relationship with Ginsburg. It was perhaps predetermined that Ginsburg would adopt Kagan as a protégée.
Both were secular Jews from New York City who spent much of their lives as law professors. Ginsburg’s daughter, Jane, who was five years older than Kagan, was also a law professor at Columbia. And Kagan, unlike Jane, was ebullient and outgoing, like Marty Ginsburg, whose death roughly coincided with Kagan’s arrival. Ruth Ginsburg made Kagan her frequent date for the opera. For her part, Kagan kept her word to the senators and volunteered to go shooting with Scalia. To her surprise, she liked the guns (as well as Scalia), returned for more, and quickly graduated from clay pigeons to actual birds. The opera soon paled in comparison.

Now that Ginsburg had replaced Stevens as the senior justice on the liberal side, she had the responsibility for assigning the main dissenting opinions when the Court split in its predictable fashion. She gave
Arizona Christian
to Kagan, and here the Court saw for the first time what kind of justice Kagan would be in the way that mattered most—her writing. Kagan’s voice was straightforward and colloquial, almost chatty. In her dissent, she assailed the supposed distinction the Court drew between a state giving tax credits (permissible) and direct subsidies (impermissible) to religious schools. “Suppose a State desires to reward Jews—by, say, $500 per year—for their religious devotion,” Kagan wrote. “Should the nature of taxpayers’ concern vary if the State allows Jews to claim the aid on their tax returns, in lieu of receiving an annual stipend? Or assume a State wishes to subsidize the ownership of crucifixes. It could purchase the religious symbols in bulk and distribute them to all takers. Or it could mail a reimbursement check to any individual who buys her own and submits a receipt for the purchase. Or it could authorize that person to claim a tax credit equal to the price she paid. Now, really—do taxpayers have less reason to complain if the State selects the last of these three options? The Court today says they do, but that is wrong.” Later, she wrote: “I count 14 separate cases (involving 20 appellate and district courts) that adjudicated taxpayer challenges to tax expenditures alleged to violate the Establishment Clause. I suspect I have missed a few.”

It was entertaining reading, but as a dissenting opinion that was all it was. In the Court’s current configuration, Kagan could look forward to writing a lot more of them.

——

Alito, on the other hand, quickly established himself as an influential player in the conservative majority. On the big issues—civil rights,
Citizens United
, gun control—Alito was a reliable vote for the Roberts team, although there were differences, too, in his approach. Scalia and Thomas had a libertarian streak, especially in First Amendment cases, but Alito hewed to the more authoritarian tradition on the American right. In this way, Alito resembled Rehnquist more than Roberts.

While Scalia and Thomas seemed obsessed with the eighteenth-century world of the framers and Roberts channeled the corporate priorities of the Republican establishment, Alito had a different focus: the 1960s counterculture. When he came to Washington in 2006, Alito had a nearly invisible public profile, but he reinvented himself there as a culture warrior. Alito made speeches before groups like the Intercollegiate Studies Institute, a student leadership organization dedicated to “teaching future leaders the timeless principles that make America free and prosperous—the core ideas behind the free market, the American Founding, and Western civilization that are rarely taught in the classroom.” Likewise, Alito spoke at a fund-raiser for the
American Spectator
magazine, a right-wing outlet best known for its attacks on Anita Hill and investigations of Bill Clinton’s sex life.

In his speech, Alito joked that the
Spectator
was the “very center of the vast right-wing conspiracy,” but that was actually a pretty apt description. Alito divided the country into two worlds—that of the conservatives’ hero Ronald Reagan and that of liberals and their law schools. (The justice also repeatedly mocked Vice President Biden for an act of plagiarism he had committed many years earlier.) Alito juxtaposed the first “be-in” in San Francisco with the inauguration of Ronald Reagan as governor. “On October 26, 1967, John McCain’s plane was shot down over North Vietnam,” Alito said. “On November 30, Eugene McCarthy announced that he would seek the Democratic presidential nomination, promising to restore hope and bring about change,” he continued—to much knowing laughter at the allusion to Barack Obama’s 2008 slogan. (Like the other justices, Alito was not bound by formal ethical rules. But if he had still been a lower-court judge,
his speech to raise money for the
Spectator
would have been inappropriate. In any case, Alito’s behavior was more dubious than anything Thomas did, even though Thomas received a great deal more attention and criticism.)

Alito’s aversion to anything-goes libertarianism was especially evident in his approach to cases involving free speech. Over the years,
debates about vulgar or unpopular speech provided the grist for some of the Court’s most famous and controversial decisions. But under Roberts, the Court reached a consensus that the government had little or no power to regulate in this area. Two cases proved the point. In 2010, the justices struck down a federal law that prohibited the sale of “crush videos”—which show small animals, often woodland creatures, being killed with a woman’s bare foot or stiletto heel. The Court said Congress could ban the torture itself, but a limit on
depictions
of such behavior amounted to a violation of free speech. In a similar vein, the Court in 2011 overturned a multimillion-dollar judgment against members of the Westboro Baptist Church in Topeka, a fringe religious group with fanatically antigay views, for protesting at the funeral of a marine killed in Iraq. Because the protest took place on public land, well out of sight or hearing of funeral attendees, the Court said the damage award violated free speech rights.

Both decisions were 8–1, with only Alito in dissent. In the “crush” case, Alito, who owns a springer spaniel named Zeus, lingered over the horrific details of the videos. For example: “A kitten, secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head.” Alito concluded that “the harm caused by the underlying criminal acts greatly outweighs any trifling value that the depictions might be thought to possess.”

Alito was, if anything, even more outraged by his colleagues’ decision in the case involving the funeral,
Snyder v. Phelps
. (The antics of the Westboro Baptist Church were familiar to viewers of cable news. Notwithstanding their name, the defendants were not “Baptist,” or even a “church,” but rather a single family led by a charismatic lunatic named Fred Phelps. His daughter Margie, a lawyer, argued the family’s case in the Supreme Court and did a creditable job.) “Petitioner Albert Snyder is not a public figure,” Alito wrote in his dissent. “He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event [and then] launched a malevolent verbal attack on Matthew and his family at a time of acute
emotional vulnerability.” He went on, “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.”

Roberts, for the majority, had the last word in the case, and he made his point eloquently, as usual: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.” (The chief justice used his family back in Indiana as a kind of reality check. Roberts’s brother-in-law made a point of telling him that he agreed with Alito.)

The decision in
Snyder v. Phelps
, which came down on March 2, 2011, showed Roberts at his best. The oral argument in
Arizona Free Enterprise Club v. Bennett
, which took place later that month, featured the chief justice at his worst.

The case represented the Court’s first return to the subject of campaign finance since
Citizens United
the previous year. The public had yet to see the full implications of the decision. Most of the campaign finance reports from the 2010 election had not yet been filed or digested. What became clear in the course of the oral argument on March 28, 2011, was that the conservative justices knew what they had achieved in
Citizens United
—and they wanted to push their position forward.

The case concerned the constitutionality of the Arizona Citizens Clean Elections Act, which had been passed by the voters in 1998, to address the state’s appalling history of political corruption. This fairly modest reform established a system of optional public funding of campaigns for certain state offices. A candidate who chose to accept public funding would receive extra money from the state if his or her privately funded opponent exceeded a certain set spending limit. The basic idea was simple: to keep elections competitive if a privately funded candidate was vastly outspending a publicly funded one. The question in the case was whether the First Amendment permitted the government subsidies.

Kagan dominated the questioning of William Maurer, the lawyer
who was challenging the law. Her point was straightforward—that no one’s right to free speech was being violated by this law. “There’s no restriction at all here; it’s more speech all the way around?” she said.

“I would disagree with that, respectfully, Your Honor,” Maurer answered. “There is a restriction here. Every time an independent expenditure group or a privately financed candidate speaks above a certain amount, the government creates real penalties for them to have engaged in unfettered political expression.”

“Well, doesn’t the government actually just give a selective subsidy?” Kagan continued. “It’s not a penalty, it’s just saying, in order to run an effective public financing system, when you speak, we’re going to give a subsidy over a certain amount. So the trigger does not trigger a penalty; it triggers a subsidy.”

Roberts said nothing during Maurer’s argument, but when Bradley Phillips, the lawyer for Arizona, rose to defend the law, the chief justice tore into him. He raised several hypotheticals (mostly far-fetched) about multicandidate races and how the law might penalize the privately funded candidates. He then zeroed in on a distinction that had been drawn in
Citizens United
and other cases—one that reflected just what a mess the Court’s campaign finance decisions had created.

Since the days of Theodore Roosevelt, the idea behind keeping corporations out of politics was to level the playing field. Without these limits, corporations would have too much political power. In a 1990 case called
Austin v. Michigan Chamber of Commerce
, the Court made the sensible observation that limits on campaign contributions by corporations served to curb the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” But
Austin
was one of the cases overturned by
Citizens United
, and Kennedy’s opinion went on to say that Congress
never
could try to level the playing field with regard to campaign finance; that was now a forbidden rationale. Rather, the only permissible purpose for campaign laws was to fight corruption, which the Court defined in a very narrow way. Congress could outlaw only quid pro quo bribery, nothing more.

Against this confusing, and largely senseless, background, Roberts sprung a trap at the oral argument.

“Counsel, do you agree that under our precedents, leveling the playing field for candidates is not a legitimate State purpose?” Roberts
asked William Jay, the lawyer in the solicitor general’s office who was defending the Arizona law for the Obama administration.