The Nine (61 page)

On the last day of the last term before the 2008 election, the Court showed how much the conservative movement had achieved in just under three decades. In 1981, when Reagan took office and the Federalist Society was founded, the Second Amendment was widely considered a dead letter. But that last case,
District of Columbia v. Heller,
not only brought the Second Amendment back to life, but did so in a way that vindicated the originalism that first Meese and then Scalia championed.

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The sentence is ungrammatical and difficult to understand. The two clauses appear to have little to do with one another; the relationship between the “militia” and the right to “keep and bear arms” is unclear. Still, regardless of the ambiguity of the wording, the courts’ interpretations of the Second Amendment had been clear for decades. The right to bear arms applied only to state militias, not individuals. In other words, the amendment did not prohibit states and localities from passing gun control laws. As the Court said in a 1939 case (the last time the justices examined the issue), the Second Amendment prohibited only regulation of weapons which had a “relationship to the preservation or efficiency of a well regulated militia.” Warren Burger, the former chief justice and hardly a liberal thinker, once made the same point in an earthier way. In an interview, he said the idea that the Second Amendment prohibited gun control was “one of the greatest pieces of fraud, I repeat the word, fraud, on the American public by special interest groups.”

But those special interest groups, preeminently the National Rifle Association, found willing partners in the conservative counterrevolutionaries. On many occasions starting around 1980, individuals raised the claim that the Second Amendment protected an individual’s right to bear firearms, and in each case that position was rejected. Literally hundreds of judges ruled the same way in these cases. But pressure from the NRA and like-minded conservative groups (and a handful of liberal academics) kept the issue alive. Then, in 2003, one of these groups found a willing plaintiff—a D.C. security guard who wanted to keep a handgun at home—to challenge the District of Columbia’s strict gun control law.

The case was, in some fundamental respect, a simple one, raising only the question of what the words of the Second Amendment meant. That, in turn, required interpreting the Constitution—a politically fraught endeavor since Meese came to Washington almost three decades earlier and brought originalism from the fringes to the mainstream. In
Heller,
the five conservatives decided to reject the old view of the Second Amendment and embrace the NRA’s reading. By the familiar vote of 5–4 the Court overturned the D.C. law, and Roberts assigned the opinion to Scalia. It was by far the most important majority opinion of his career.

“We turn first to the meaning of the Second Amendment,” Scalia wrote in the key section of his opinion. The very structure of Scalia’s opinion, no less than the result in the case, illustrated why the case amounted to such a personal triumph for him. He began with what he called “textual analysis,” a close parsing of the words, like “militia” and “keep and bear arms,” and their meanings. This was no idle choice. It was a fundamental tenet of Scalia’s philosophy—that judges should rely on the text of the Constitution, more than the contemporary meaning of the words. He turned next to his “review of founding-era sources”—that is, his quest for the original meaning of the amendment. This was an even more important interpretive choice for Scalia. He searched for the “meaning that ‘bear arms’ had in the eighteenth century,” because to him the meaning of the phrase was necessarily the same in the twenty-first century. Textualism and originalism—these were Scalia’s creeds, and he had now read them into an extraordinarily important case.

Justice Stevens’s dissent suggested the extent of Scalia’s triumph. Writing also for his three liberal colleagues, Stevens insisted Scalia was wrong and that the Second Amendment did not bar the government from enacting gun control measures. To prove his point, Stevens also went through the text and history of the Second Amendment, even though they led him to a different conclusion. But Scalia and his fellow counterrevolutionaries had changed the nature of constitutional debate. And in this case at least, they had won.

Exactly what they had won remained unclear. The degree of judicial activism reflected in the gun control opinion was extraordinary. Scalia even went so far as to say the part of the D.C. law mandating trigger locks was also unconstitutional; under his reading, the Constitution required that guns in the home be available for “immediate self-defense.” In what might have been a wry tweak to his liberal adversaries—the ones he usually accused of activism—Scalia noted gravely, “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”

The opinion in
Heller
guaranteed a flood of new litigation. The Second Amendment now protects the right to possess weapons in the home, but what about outside the home? Is the sale of weapons now also protected by the Constitution? Scalia said the government could regulate some “military” weapons, but what are they, and how can anyone tell? As a result of the Court’s decision in
Heller,
it will be judges, not voters and elected officials, who will be answering these questions. And it will be years, and perhaps decades, before the courts even debate them.

Indeed, at this precarious moment in the Court’s history, it is hard to say for sure which issues are settled for the long term. The 4–4–1 breakdown of the justices guarantees that on most any controversial issue, the majority will be tenuous. This is especially true on the most politically explosive issues before the Court—abortion, above all. The replacement of a liberal by a conservative—or of a conservative by a liberal—will transform the law, perhaps for a generation. To many, the polarized state of affairs is cause for dismay; the hope for a middle ground—for “the law” to become clear—endures. But this, as the framers knew, remains a false hope. The justices of the Supreme Court are selected by the president and confirmed by the senate because they are part of the grand political design that is our Constitution. And so, with their votes and through this system, the people pick their Supreme Court. In 2008 especially, but in every election as well, the Court’s future is up for a vote.

ACKNOWLEDGMENTS

This book was much improved by the attentive and skillful editing of Phyllis Grann. At Doubleday, I am grateful also to Karyn Marcus, Todd Doughty, Roslyn Schloss, Rebecca Holland, Michael Collica, Bette Alexander, and the boss, Stephen Rubin. Once again, my agent, Esther Newberg, has steered me the right way. My thanks as well to John Q. Barrett of the St. John’s School of Law and to Tom Goldstein of the Akin, Gump firm for their helpful comments on the manuscript, and to Dan Kaufman for fact-checking assistance.

I am privileged to work at
The New Yorker
, where David Remnick has been a generous editor and a loyal friend. I am fortunate to work with Dorothy Wickenden, Emily Eakin, and Jeffrey Frank. I am lucky, too, in my CNN colleagues, and I thank Jon Klein and Bill Mears for their support of this venture.

Covering the World Cup had absolutely nothing to do with writing about the Supreme Court, but that experience, with my son Adam, was the highlight of this book’s creation. Talking with my daughter Ellen is always a part of my continuing education, about law, politics, and everything else. My days with their mother, Amy McIntosh, are nothing less than the highlight of my life.

NOTES

This book is based principally on my interviews with the justices and more than seventy-five of their law clerks. The interviews were on a not-for-attribution basis—that is, I could use the information provided but without quoting directly or identifying the source.

I have also steeped myself in the vast literature about the Court. In addition to the works cited below and in the bibliography, I have benefited from the day-to-day coverage of the Supreme Court press corps, especially that of Linda Greenhouse, Lyle Denniston, Chuck Lane, Dahlia Lithwick, Tony Mauro, David Savage, and Nina Totenberg. My thanks also to the Public Information Office of the Court, its excellent website,
www.supremecourtus.gov
, and Kathy Arberg, Patricia McCabe, and Ed Turner. Like all contemporary students of the Court, I benefited from my immersion in Justice Blackmun’s papers at the Library of Congress. My discussion of the
Casey
abortion decision drew heavily from this priceless trove.

Fortunately, the Court’s opinions are now widely available online. I relied on Cornell University’s
http://supct.law.cornell.edu/supct/index.html
. For transcripts and recordings of the Court’s oral arguments, Professor Jerry Goldman of Northwestern University created
www.oyez.org
, which I found indispensable. Among blogs, I looked often at the authoritative
www.scotusblog.com
, the encyclopedic
http://howappealing.law.com
, and the irresistible, if much diminished
http://underneaththeirrobes.blogs.com
. I am grateful, too, to Dr. Robert Browning and his colleagues at the C-Span archive in West Lafayette, Indiana, for the opportunity to study their many treasures.

PROLOGUE

The architect Cass Gilbert:
Paul Byard, “Supreme Court Architecture,” lecture, Supreme Court Historical Society, U.S. Supreme Court, March 24, 1999; Fred J. and Suzy Maroon,
Supreme Court
, chs. 1–2; William H. Rehnquist,
Supreme Court
, pp. 100–2; Leo Pfeffer,
Honorable Court
, p. 69.

CHAPTER 1: THE FEDERALIST WAR OF IDEAS

They called themselves the Federalist Society:
George W. Hicks, “The Conservative Influence of the Federalist Society on the Harvard Law School Student Body,”
Harvard Journal of Law and Public Policy
29(2006), p. 648.

some conservatives started questioning that wisdom:
For an extensive and critical examination of the Constitution-in-exile movement, see Cass R. Sunstein,
Radicals in Robes
, and Jeffrey Rosen, “The Unregulated Offensive,”
New York Times Magazine
, April 17, 2005.

a speech at Yale in 1982:
Hicks, “Conservative Influence,” p. 649.

“object to as much as the last one”:
Ethan Bronner,
Battle for Justice
, p. 312.

Sununu promised that the president:
Jane Mayer and Jill Abramson,
Strange Justice
, p. 13.