The Nine (15 page)

The members of the Federalist Society and others who wanted the Court to undermine the constitutional basis for a strong federal government needed a case where the issue was raised. So in the strange serendipity that often yields important cases, the matter of Alfonso Lopez Jr. appeared with exquisite timing.

On March 10, 1992, Lopez, a twelfth grader, arrived at Edison High School in San Antonio carrying a concealed .38 caliber handgun and five bullets. Acting on an anonymous tip, school authorities confronted him, and Lopez disclosed the weapon. He was arrested and charged under Texas law with possession of a firearm on school premises. But the state charges were dismissed the next day when federal agents accused him of violating the Gun-Free School Zones Act of 1990, which prohibited possession of a gun at or near a school. Lopez would have walked quietly away from the case if he had been sentenced to probation. But the judge gave him six months, which interfered with Lopez’s plans to join the Marine Corps, so he asked his public defender to appeal. The facts of the case were simple; the law, it turned out, was not.

By the time Lopez’s case began working its way through the courts, the ideas championed by the Federalist Society had coalesced. The society itself had grown to forty thousand members, with an annual budget of more than $3 million. The movement even got a name, courtesy of Judge Douglas H. Ginsburg, who was once briefly famous. After Robert Bork’s nomination failed in the Senate, Reagan named Ginsburg, then a forty-one-year-old judge on the D.C. Circuit, as his replacement. Ginsburg’s nomination quickly collapsed, however, following news reports that he had smoked marijuana while he was a law professor. Ginsburg soldiered on as a fervently conservative appeals court judge, and he later published an article in
Regulation
, a libertarian magazine published by the Cato Institute. Ginsburg wrote in an admiring tone about the state of constitutional law before 1937, when the Supreme Court struck down virtually all efforts to regulate the economy. The Court had relied on doctrines like the Commerce Clause, which now represented what Ginsburg called the “Constitution in Exile.” “The memory of these ancient exiles,” he wrote, “banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty—even if perhaps not in their own lifetimes.”

In short, the Constitution in Exile movement represented a direct threat to the modern welfare state, and the
United States v. Lopez
case loomed as its first major test in the Supreme Court.

As usual, O’Connor had an early question for Drew S. Days III, the solicitor general, who was defending the constitutionality of the guns-in-schools law.

“Is the simple possession of something at or near a school ‘commerce’ at all? Is it?”

“I think the answer to that is that it is,” Days answered.

“I would have thought that it wasn’t,” O’Connor replied in her direct way, “and I would have thought that it, moreover, is not interstate.”

It was an inauspicious start to Days’s argument, which went downhill from there. O’Connor, Kennedy, Rehnquist, and Scalia demanded to know how Congress could presume to regulate mere gun possession, near a school or otherwise.

But the subtext of the questions was almost as significant as the words themselves. The justices oozed contempt for Congress, which they clearly regarded as a bumbling, only quasi-respectable institution.

“Can you tell me, Mr. Days,” Scalia said, with a smirk, “has there been anything in our recent history in the last twenty years where it appears that Congress made a considered judgment that it could
not
reach a particular subject?”

Laughter drowned out the beginning of Days’s answer.

At another point, Days said that Congress had a “rational basis” for connecting school violence to commerce.

In response, Souter quipped, “Benjamin Franklin said, ‘It is so wonderful to be a rational animal, that there is a reason for everything that one does.’ ” Again, laughter filled the courtroom.

Through most of its history, the Supreme Court had close ties to Congress. Many justices were ex-senators. But the Rehnquist Court had no such connections. Rehnquist and Scalia had worked only in the executive branch, O’Connor and Souter in state government, Kennedy, Stevens, and Ginsburg in private practice and law schools. Thomas, who observed his customary silence during the
Lopez
argument, had worked briefly on the staff of Senator John Danforth of Missouri, but the searing experience of his confirmation hearings permanently soured him on Congress. Breyer alone felt any sort of kinship with this coordinate branch of government.

It was still early in Breyer’s career on the Court, so he had not yet asserted himself as the powerful presence in oral arguments that he would become. But finally, frustrated at both Days and his colleagues, Breyer unloaded on the public defender who was representing Lopez. “So what would you say about the obvious argument, the simple argument against your position, that this isn’t a borderline case?

“The guns move in interstate commerce, likely, the books do, the desks do, the teachers might,” Breyer said. “People will not move to places in this country where children are being killed in schools by guns, and in fact, if the Federal Government can’t do something about it, maybe the whole economy will go down the drain in a thousand obvious ways.” Breyer referred to a case from 1942 where the Court said that homegrown wheat was sufficiently connected to interstate commerce to be regulated under the Commerce Clause. “If some homegrown wheat affects interstate commerce, which I guess is a borderline question economically, certainly guns in schools do really affect commerce.” All Breyer had done was summon the unquestioned state of constitutional law for more than a half century.

But Breyer’s advocacy (in the form of his questions) did not persuade a majority of his colleagues. On April 26, 1995, the Court ruled 5–4 that Congress had violated the Commerce Clause in passing the Gun-Free School Zones Act. Rehnquist’s opinion (joined by O’Connor, Scalia, Kennedy, and Thomas) represented the first time since 1935 that the justices had invalidated a law on the grounds that Congress exceeded its authority under the Commerce Clause. The rhetoric of the opinion meshed with that of Newt Gingrich, the newly installed Speaker of the House. Quoting James Madison in Federalist No. 45, Rehnquist wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The scope of “big government” was officially under assault from both sides of First Street.

The decision prompted the first full-throated dissent of Breyer’s career. “In my view, the statute falls well within the scope of the commerce power as this Court has understood that power over the last half century,” he wrote. Worse, he said, the majority’s decision represented a major threat to many other laws on the books. “Congress has enacted many statutes (more than 100 sections of the United States Code), including criminal statutes (at least 25 sections), that use the words ‘affecting commerce’ to define their scope,” Breyer wrote. “The Court’s holding…threatens legal uncertainty in an area of law that, until this case, seemed reasonably well settled.” But that, of course, was the point. The seeds sown by the Federalist Society and its allies were starting to bear fruit.

Like the other justices, Breyer knew the famous question that William Brennan used to ask his law clerks. What’s the most important law at the Supreme Court? The clerks would puzzle for some time. Freedom of speech?…Equal protection?…Separation of powers?…until the justice would raise his tiny hand and say, “Five! The law of five! With five votes, you can do anything around here!” Breyer, who clerked on the Court in its liberal heyday, would remark when the Brennan story was told, “Easy for him to say. He
started
with
seven
votes.” But Justice Stephen Breyer served on a very different Court. In the summer after
Lopez
, a friend praised him for his opinion in the case. Breyer gave a wistful smile and waved four fingers in the air. “Four votes,” he said. “Only four votes.”

7

WHAT SHALL BE ORTHODOX

I
t wasn’t just the Federalist Society leading the conservative offensive in the Supreme Court during the 1990s. The law professors and their students could come up with theories and write learned articles and op-ed pieces, but the movement needed the legal equivalent of foot soldiers, too—the lawyers who would actually bring and argue the cases before the Court. In law, as in politics, the best troops came from the most passionate and engaged part of the conservative coalition—evangelical Christians.

Evangelicals joined the fight at the Supreme Court because they, even more than academic critics on the right, were the most outraged by the state of America. While conservative scholars spun theories about the scope of the Commerce Clause, evangelical activists witnessed the actual impact of Supreme Court decisions. In front of abortion clinics. At school board meetings. At high school football games. And the activists were right: the Court had long lined up against their interests. For more than a generation, the justices had engaged in a more-or-less explicit initiative to secularize the Constitution.

When it came to religion in public life, the framers of the Constitution espoused two potentially contradictory ideas. The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” For more than a century after the founding of the republic, the courts tolerated a great deal of religion in the public sphere—like prayer and Bible reading in schools, frequent invocations of God and evocations of the Ten Commandments in government buildings (and on currency). At the time, this kind of “free exercise” of religion did not amount to an “establishment” thereof. Indeed, the government was free to
require
some degree of piety, or patriotism, from its citizens.

This was especially true in the late 1930s, when public schools around the country insisted that students salute and pledge allegiance to the flag at the beginning of each school day. Many Jehovah’s Witnesses objected to the practice, believing that it violated the commandment “Thou shalt have no other gods before me.” As World War II grew closer, the Witnesses faced a vicious response. Students were expelled from school. Protests were held outside their homes. When they asked the Supreme Court for protection, in the 1940 case of
Minersville School District v. Gobitis
, they lost. The majority asserted that schools had the right to insist that students participate in rituals designed to “secur[e] effective loyalty to the traditional ideals of democracy.”

Within months of that decision, though, the Supreme Court, along with the rest of the nation, saw what could happen in a society where loyalty was coerced and nonconformism punished. The chilling example of fascism in Europe reminded Americans, including judges, of the importance of freedom of speech and worship. In this way, the example of Nazism shaped what the American Constitution would become. The transition was fast, too. Just three years after
Gobitis
, in 1943, the Witnesses brought a nearly identical challenge, and this time they won, in a case that may represent the Supreme Court’s quickest reversal of one of its own precedents.

Justice Robert H. Jackson’s opinion for the majority in
West Virginia Board of Education v. Barnette
, one of the most eloquent in the Court’s history, set down principles that would become lodestars of the American creed. “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds,” he wrote, before concluding with one of the most famous passages in the annals of the Court: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

From this ruling, it was just a short jump for the Court to impose ever-greater limits on mandatory observances of any kind in public settings. The next key moment came in 1962, when the Court banned prayer in public schools, even when children were given the right not to participate. In
Engle v. Vitale
, Justice Hugo Black employed the same reasoning as Jackson did in prohibiting mandatory salutes of the flag. “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain,” he wrote. A year later, the justices banned mandatory Bible reading in public schools as well.