The Oath (49 page)

  
1
only a single provision:
I am grateful to Professor Akhil Reed Amar, of Yale Law School, for introducing me to the history of the oath. In particular, I relied on his book
America’s Constitution
, pp. 177–78.

  
2
whether he did:
For an evocative account of Washington’s inauguration, see Ron Chernow,
Washington: A Life
, ch. 46.

  
3
wrote to the chief justice about it:
Time
, March 25, 1929,
http://www.time.com/time/magazine/article/0,9171,846311,00.html#ixzz1WAMUAeom
.

  
4
standing athwart history yelling “Stop!”:
William F. Buckley Jr., “Publisher’s Statement,”
National Review
, Nov. 19, 1955, p. 5.

  
1
friends and colleagues found Obama more analytical than confrontational:
David Remnick,
The Bridge
, pp. 163–67.

  
2
“Do you even
want
popcorn?”:
Remnick,
The Bridge
, p. 189.

  
3
“for a lot of the changes that have been made”:
Remnick,
The Bridge
, pp. 207–08.

  
4
compromise on racial profiling by the police:
Remnick,
The Bridge
, pp. 350–51.

  
1
a justice who might overturn
Roe v. Wade: David Remnick,
The Bridge
, p. 434.

  
2
“Whoever had the 15- to 20-minute slot won that money”:
Roger Parloff, “On History’s Stage: Chief Justice John G. Roberts Jr.,”
Fortune
, Jan. 3, 2011,
http://management.fortune.cnn.com/2011/01/03/on-historys-stage-chief-justice-john-roberts-jr/
.

  
3
Roberts was the leading figure in his generation:
See
http://www.scotusblog.com/2006/03/the-expansion-of-the-supreme-court-bar/
.

  
1
“in the event that you do lead the defense team at the military tribunals, to offer my help”:
Jonathan Mahler,
The Challenge
, ch. 4.

  
2
“two implants on each side and a total of three pints of fluid”:
Dan P. Lee, “Paw Paw & Lady Love,”
New York
, June 5, 2011,
http://nymag.com/news/features/anna-nicole-smith-2011–6/
.

  
1
the quorum for the official prayers:
Abigail Pogrebin,
Stars of David
, p. 19.

  
2
“That makes no sense”:
Speech by Ruth Bader Ginsburg, Tenth Circuit Conference, Aug. 27, 2010,
http://www.c-spanvideo.org/program/295217-1
.

  
3
“the right most valued by civilized men”:
Olmstead v. United States
, 277 U.S. 438 (1928) (Brandeis, J., dissenting).

  
4
“not legal reasoning but fiat”:
Robert Bork,
The Tempting of America
, p. 114.

  
5
“her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen”:
Ruth Ginsburg, “Some
Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” 63
North Carolina Law Review
375 (1985).

  
6
“the tall doctor and the little woman who needs him”:
http://www.nytimes.com/2009/07/12/magazine/12ginsburg-t.html?_r=2&pagewanted=all
.

  
7
“dissenting judge believes the court to have been betrayed”:
Charles Evans Hughes,
The Supreme Court of the United States
(1936), p. 68, quoted in Ruth Bader Ginsburg, “The Role of Dissenting Opinions,” 95
Minnesota Law Review
1 (2010),
http://www.minnesotalawreview.org/wp-content/uploads/2011/07/Ginsburg_MLR.pdf
.

  
8
“The Constitution, as we have known it, is gone”:
John Q. Barrett, “Commending Opinion Announcements by Supreme Court Justices,”
http://www.stjohns.edu/media/3/55c14b0772794f148fec48e3c14851a7.pdf
. See also James F. Simon,
FDR and Chief Justice Hughes
, p. 256.

  
9
each read dissents from the bench exactly once:
I am grateful to William Blake, of the University of Texas, for sharing his research with me. See William D. Blake and Hans J. Hacker, “The Brooding Spirit of the Law: Supreme Court Justices Reading Dissents from the Bench,”
Justice System Journal
31(1): 1–25 (2010).

  
1
“public law litigation”:
Abram Chayes, “The Role of the Judge in Public Law Litigation,” 89
Harvard Law Review
1281 (1976).

  
1
was able to assemble a majority in only a quarter of them:
These statistics are drawn from the annual compilations by
scotusblog.com
.

  
1
took his rifle, a .22 carbine, with him on the subway:
Joan Biskupic,
American Original
, pp. 21–22.

  
2
after a string of bank robberies:
The Miller story is laid out in entertaining detail in Brian L. Frye, “The Peculiar Story of
United States v. Miller
,”
NYU Journal of Law & Liberty
3(1): 48–82 (2008).

  
3
the colonists formed militias:
Adam Winkler,
Gunfight
, pp. 103–04.

  
4
the 1976 platform opposed it:
Reva B. Siegel, “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” 122
Harvard Law Review
191 (2008).

  
5
advocated for the individual rights view in conferences and seminars:
Winkler,
Gunfight
, pp. 67, 97.

  
6
“for protection of himself, his family, and his freedoms”:
Quoted in Siegel, “Dead or Alive.”

  
7
later joined the Reagan Justice Department:
Ibid.

  
1
Reagan-era Justice Department official with close ties to the conservative movement:
Adam Winkler,
Gunfight
, p. 57.

  
2
drug dealers broke her car windows and drove into her back fence:
Brian Doherty,
Gun Control on Trial
, p. 29.

  
3
Stevens who hewed more closely to the actual debates of the framers:
Post by Jack Rakove,
http://balkin.blogspot.com/2008/06/thoughts-on-heller-from-real-historian.html
.

  
4
as did the state legislators who ratified their work:
The most often cited critique of originalism remains Paul Brest, “The Misconceived Quest for Original Understanding,” 60
Boston University Law Review
204 (1980).

  
5
they never indicated that they understood their
intentions
should bind future generations:
H. Jefferson Powell, “The Original Understanding of Original Intent,” 98
Harvard Law Review
885, 903 (1984).

  
6
and then find their twenty-first-century analogue:
Winkler,
Gunfight
, pp. 283–86. See also Nelson Lund, “The Second Amendment, Heller, and Originalist Jurisprudence,” 56
UCLA Law Review
1343 (2009).

  
1
had voted against his confirmation three years earlier:
Tony Mauro, The Blog of
Legal Times
, Jan. 14, 2009.
http://legaltimes.typepad.com/blt/2009/01/a-chat-around-the-fireplace-for-obama-biden-and-the-supreme-court.html
.

  
1
“adapt it to their own needs and uses”:
Diane P. Wood, “Our 18th Century Constitution in the 21st Century World,”
http://www.scotusblog.com/wp-content/uploads/2009/05/80_nyulr_1079_5-13-09_1224.rtf
.

  
2
was the case of
National Organization for Women v. Scheidler
,
in 2001:
For a clear discussion of that case, see Emily Bazelon’s discussion in
Slate
,
http://www.slate.com/articles/news_and_politics/jurisprudence/2010/04/defining_radical_down.html
.

  
3
suddenly of a heart attack at the age of forty-two:
Antonia Felix,
Sonia Sotomayor: The True American Dream
, pp. 12–14.

  
4
“mark that I wasn’t able to succeed at those institutions”:
Quoted in Felix,
Sonia Sotomayor
, p. 39.

  
5
she toured Israel with a group of Latino activists:
Lauren Collins, “Number Nine,”
New Yorker
, Jan. 11, 2010, p. 48.

  
6
including the son of her dentist:
Collins, “Number Nine,” p. 48.

  
1
“make constitutional law on his own”:
Jack Beatty,
Age of Betrayal: The Triumph of Money in America
,
1865–1900
, p. 176. Beatty points out that Davis’s credibility was suspect because Karl Marx (!) complained that Davis had misquoted him in a report. On
Santa Clara
, see also Morton J. Horwitz,
The Transformation of American Law
,
1870–1960
, pp. 66–71.

  
2
“ ‘the government is best which governs least’ ”:
Horwitz,
The Transformation of American Law
, p. 33.

  
3
“then he did not stay bought”:
Frick made the comment to the journalist Oswald Garrison Villard, who recounted it in his book
Fighting Years
, p. 181.

  
4
required extensive disclosure of campaign contributions and expenditures:
Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes,
The Law of Democracy
, p. 334.

  
5
Warren Burger, Potter Stewart, Lewis Powell, and William Rehnquist:
Seth Stern and Stephen Wermiel,
Justice Brennan: Liberal Champion
, p. 442.

  
6
Congress had tried to set up a tightly controlled system for financing campaigns:
Frank J. Sorauf,
Inside Campaign Finance: Myths and Realities
, pp. 238–39.

  
1
named Bossie his “chief researcher” and the pair narrowed their focus to the personal and financial affairs of Bill and Hillary Clinton:
Joe Conason and Gene Lyons,
The Hunting of the President: The Ten-Year Campaign to Destroy Bill and Hillary Clinton
, pp. 72–75.

  
2
various Washington journalists who printed or broadcast his accusations:
Sidney Blumenthal,
The Clinton Wars
, pp. 76–77.

  
3
he had doctored certain transcripts to eliminate exculpatory information about Hillary Clinton:
Howard Kurtz, “Some Reporters Heard Unedited Tapes,”
Washington Post
, May 11, 1998. See also Blumenthal,
The Clinton Wars
, pp. 443–44.

  
4
“conspiring against my husband since the day he announced for
president”:
Jeffrey Toobin,
A Vast Conspiracy: The Real Story of the Sex Scandal That Nearly Brought Down a President
, pp. 254–56.

  
1
social studies to fifth and sixth graders:
For the reflection of one former Gloria Kagan student, see Blake Eskin, “The Ghost of Mrs. Kagan,”
http://www.newyorker.com/online/blogs/newsdesk/2010/05/the-ghost-of-mrs-kagan.html
.

  
1
embezzled funds from the insurance company to prop up the hotel:
Bill Barnhart and Gene Schlickman,
John Paul Stevens: An Independent Life
, p. 31.

  
2
one of the boys was forced to open a safe in the first-floor library:
Barnhart and Schlickman,
John Paul Stevens
, pp. 32–33.

  
1
spotty at best in recent years:
Pete Williams of NBC News compiled the statistics:
http://firstread.msnbc.msn.com/_news/2011/01/25/5914956-will-chief-justice-roberts-be-in-attendance-after-all
. See also Adam Liptak, “For Justices, State of the Union Can Be a Trial,”
New York Times
, Jan. 23, 2012,
http://www.nytimes.com/2012/01/24/us/state-of-the-union-can-be-a-trial-for-supreme-court-justices.html
.

  
2
“juvenile spectacle”:
Adam Liptak, “Six Justices to Attend State of the Union,” Jan. 25, 2011,
New York Times
,
http://www.nytimes.com/2011/01/26/us/politics/26justices.html?_r=3
.