The Oath: The Obama White House v. The Supreme Court Read online

  The job was the pivotal point in Kagan’s career, just as the Reagan White House changed Roberts’s life. Every office, even the West Wing, has its stars, and both future justices stood out from their peers, even in such lofty environs. Clinton used to say that anytime Kagan walked into the Oval Office, the average IQ in the room doubled. She spent two years as an associate White House counsel and two more as deputy domestic policy adviser. (Roberts also spent four years in the White House.)

  As with most other presidential advisers, it was difficult to identify with precision how Kagan’s own views affected the policies of the administration. This was true of Roberts, too. Certainly Kagan played an important role in negotiating the complex resolution of lawsuits and legislation involving the cigarette industry. (Not coincidentally, it was during Kagan’s White House years that she finally defeated her own twenty-year cigarette habit.) Perhaps most importantly, the White House gave Kagan the chance to impress a generation of senior Democrats, many of whom would go on to important roles in the Obama administration. Her colleagues knew her politics—but those insights would be forever off-limits to Republicans. In the fog of government policy making, Kagan became known in the Clinton years mostly as a no-bullshit closer. Like most other staffers, she was probably more liberal than the president she served. A decade earlier, Roberts earned a similar reputation and was certainly more conservative than Reagan. These insights about the true views of Kagan and Roberts created no paper trail, but that didn’t make them any less true.

  The parallel between Roberts and Kagan became especially clear at the end of her tenure in the White House. In 1992, George H. W. Bush had nominated Roberts, who was then just thirty-seven, to the D.C. Circuit, the traditional stepping-stone to the Supreme Court. In June 1999, Clinton nominated Kagan, who was thirty-nine, to the D.C. Circuit. Both nominations suggest how highly the two were regarded by their respective presidents and parties, even at such young ages. But both nominations met similar ignominious fates. In 1992, the Democrats in control of the Senate stalled Roberts’s nomination into oblivion. As for Kagan, even though the change of administrations was more than a year and a half away at the time she was chosen, the Republicans who held the majority used the same tactics to kill her nomination; Kagan never even received a vote in the Judiciary Committee.

  For both Roberts and Kagan, the failed nominations appeared to be crushing disappointments. For both, as it turned out, it was the best thing that ever happened to them.

  The nomination of Kagan to the D.C. Circuit, even though she failed to be confirmed, marked her as a potential Supreme Court justice. It was a tremendous honor and vote of confidence. With the Clinton administration winding down, though, Kagan faced a more immediate problem. She needed a job.

  Kagan had exceeded the customary amount of time on leave to preserve her tenure at the University of Chicago Law School, but she had assumed that the job was still hers if she wanted it. She was wrong. Chicago fancies itself the most self-consciously intellectual of major law schools, and Kagan’s modest record as a scholar counted against her. She was out. (Decades earlier, Scalia struggled to receive tenure at Chicago for similar reasons; the local mandarins thought, correctly, that he preferred Washington to academia.) So Kagan scrambled and found a visiting professor position at Harvard, essentially an audition for tenure. She produced a major law review article on administrative law, her teaching was as famously excellent as ever, and she won tenure after her second year.

  The key moment in Kagan’s early years on the Harvard faculty occurred when she had an opportunity to put her true skills to good use. Harvard had purchased hundreds of acres on the Boston side of the Charles River, and the new president, Lawrence Summers, was considering moving the law school there from its longtime home in Cambridge. The faculty regarded this possibility with horror. Robert Clark, the dean of the law school, named Kagan the head of a task force to study the possibility of the move—in reality, to kill it. Kagan summoned all of her bureaucratic finesse and delivered a report to Summers that all but buried the idea. Summers turned the land over to scientific projects instead, and Kagan became a hero to her colleagues on the faculty. Then Clark stepped down.

  Summers, himself a former Clinton White House aide and then treasury secretary, had been a friend and colleague of Kagan’s in Washington. Though Kagan was only forty-three in 2003 and had almost no administrative experience, Summers decided to take a chance on her as the first female dean of Harvard Law School.

  What happened next was one of those rare intersections of the right person at the right time in the right place. The dour Robert Clark had presided over the law school through all its enervating internal wars. Kagan, young and ebullient, swept in and cleared the air. The booming economy, at least for lawyers, helped solve many of her problems. Liberals and conservatives had battled for years for places on the faculty but Kagan had the money to reach the perfect solution—she could hire both! She gave the students free coffee, and an ice rink to use in the winter, and they loved her. Kagan’s own politics were, as ever, artful. She preserved the longtime boycott against military recruiters—employers that discriminated against gay people were not allowed to conduct official interviews on campus—but she arranged an enthusiastic welcome for the soldiers and veterans who were students. (She invented an annual Veterans Day dinner for active military students, veterans, and their spouses.) It was the kind of behavior that would look good at a confirmation hearing, and, eventually, it did.

  To be sure, some of Kagan’s behavior was calculated—a studied attempt to present a bipartisan image. But her enthusiasm for debate, for the give-and-take of intellectual life on campus, was real. At a Federalist Society banquet at Harvard, she welcomed the group with the words “I love the Federalist Society”—and won a raucous standing ovation. Then she added, with winning candor, “But, you know, you are not my people.” Her elaborate celebration of the twentieth anniversary of Antonin Scalia ’60 on the Supreme Court bench was doubtless sincere—as well as very savvy. Her tenure as dean was such a success that when Summers was forced out as president in 2006, Kagan was an obvious candidate to succeed him as president of the university.

  Here, though, Kagan’s politicking proved too clever for her own good. Summers’s fall as president was precipitated by his comments about the underrepresentation of women in science that were widely denounced for ignorance and sexism. At that moment, Kagan was Summers’s most high-profile female hire. As such, she could have been an important defender of his. But Kagan, perhaps sensing Summers’s impending doom, was notably restrained in offering support for her embattled boss.

  This came back to haunt her. Robert Rubin, the former treasury secretary, was also a leading member of Harvard’s governing board, and he had pushed for Summers, his successor at Treasury, to be named president of the university. In Rubin’s view, Kagan had shown great disloyalty and ingratitude to Summers when she left him twisting in the wind during the women-in-sciences flap. Accordingly, Rubin made it his personal mission to prevent Kagan from becoming president of Harvard, and indeed the job went instead to Drew Gilpin Faust.

  With her progress blocked at Harvard, Kagan looked for other options. She made it clear that she was backing Obama for president in 2008 and that she hoped to join him in Washington. During the transition period after the election, Greg Craig, the White House counsel designate, made a recruiting trip to Cambridge and asked Kagan what she had in mind for herself. She knew that the job of attorney general had been promised to Eric Holder, so she told Craig she wanted to be deputy AG, the person who traditionally runs the day-to-day operations of the Department of Justice. Following the disastrous tenure of Alberto Gonzales, DOJ was demoralized—just like Harvard Law School when Kagan became dean. She knew how to bring people together in a large and complex organization.

  Sorry, said Craig. Holder had promised the deputy job to someone else.

  What about solicitor general? he asked her.

  “I’m
not an appellate lawyer,” Kagan said, which was, if anything, an understatement. She had only ever been a “real” lawyer as a junior associate at Williams & Connolly. But Kagan had never run anything before she was a dean—and never worked at the White House before she went there either. SG was the most intellectually demanding job in the Justice Department, but Gloria Kagan’s daughter never lacked for moxie. “If I’m asked to do it, I’ll do it,” she told Craig. In short order, she was.

  And so, in 2009, a decade after Kagan failed to become a judge on the D.C. Circuit, she was given the job that was sometimes known as the tenth justice. If she had been confirmed to the D.C. Circuit, as she had hoped to be, she might well have had a long paper trail of controversial decisions that could have disqualified her from being considered for the Supreme Court. Instead, she had a sterling—and largely apolitical—record as the savior of Harvard Law School.

  As for John Roberts, his failure to win confirmation in 1992 allowed him to spend a decade as a widely respected, highly paid, and largely apolitical appellate lawyer at Hogan & Hartson. To complete the symmetry between the two lives, in 2001 George W. Bush (like his father) nominated Roberts to the D.C. Circuit, and this time, after another long delay, Roberts was confirmed. The seat Roberts occupied was the very one that Clinton had tried, and failed, to fill with Kagan.

  After the second argument of Citizens United, the votes were the same as after the first one. Kagan’s advocacy had failed to break up the majority. Roberts, Scalia, Kennedy, Thomas, and Alito voted to overturn the judgment of the FEC, with Stevens, Ginsburg, Breyer, and Sotomayor (in place of Souter) on the other side. Because of the revised, and much broader, Questions Presented, Roberts was now well within his rights to lead the charge to bury decades of campaign finance law.

  At the time of the first argument, in March 2009, it was not clear that Citizens United was going to be a blockbuster, so the case received a modest amount of attention. But everyone understood the stakes of the reargument. There was the inherent drama of Kagan’s debut as solicitor general and Sotomayor’s first case on the bench. (From the start, the new justice proved an able and vigorous questioner.) More importantly, the political implications of Citizens United were immense. The conservative movement had been fighting for decades to dismantle campaign finance rules. Figures as varied as Mitch McConnell, the Kentucky senator and personification of the GOP political establishment, and David Bossie, the bad-boy investigator, had the same passion for the issue. It was true that their side had some support from traditional liberal groups, like the American Civil Liberties Union (which takes an absolutist view on free speech issues) and some labor unions (which wanted to keep spending money in elections). Still, the ACLU was eccentric, and unions were losing power.

  At its heart, Citizens United was a case about Republicans versus Democrats. Since the Progressive era, Republicans had been the party of moneyed interests in the United States. For more than a century, Republicans had fought virtually every limitation on corporate or individual participation in elections. Democrats supported these restrictions. It was a defining difference between the parties. So, as the chief justice chose how broadly to change the law in this area, the real question for him was how much he wanted to help the Republican Party. Roberts’s choice was: a lot.

  * Kagan and I were classmates and friends at law school.

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  THE NINETY-PAGE SWAN SONG OF JOHN PAUL STEVENS

  Roberts assigned the opinion in Citizens United to Anthony Kennedy. It was another brilliant strategic move by the chief. Alito’s replacement of O’Connor in 2006 had locked the Court into a consistent 4–4 conservative-liberal split and left Kennedy the most powerful justice in decades. On controversial issues—including abortion, affirmative action, civil rights, the death penalty, federal power, among others—Kennedy controlled the outcome of cases. For the previous fifteen years or so, O’Connor had most often held the swing vote, though she never controlled as many cases as Kennedy did.

  There was a striking difference in the way that O’Connor and Kennedy handled their roles as the swing vote. O’Connor was a gradualist, a compromiser, a politician who liked to make each side feel like it won something. When O’Connor was in the middle in a case, she would, in effect, give one side 51 percent and the other 49. In Casey, she saved abortion rights; in Grutter, she preserved racial preferences in admissions for the University of Michigan Law School; in Hamdi, she repudiated the Bush administration’s lawless approach to the detainees held at Guantánamo Bay. In each of these cases, as the author of or contributor to the opinions, O’Connor split the difference. Yes to restrictions on abortion but no to outright bans; yes to affirmative action but no to quotas; yes to the right of detainees to go to court but no to the full constitutional rights of American citizens. In describing her judicial philosophy, O’Connor liked to point to the sculpted turtles that formed the base of the lampposts outside the Supreme Court. “We’re like those turtles,” she liked to say. “We’re slow and steady. We don’t move too fast in any direction.”

  Anthony Kennedy was no turtle. Unlike O’Connor, he tended to swing wildly in one way or the other. When he was with the liberals, he could be very liberal. His opinion in Lawrence v. Texas, the 2003 decision striking down laws against consensual sodomy, contains a lyrical celebration of the rights of gay people. Similarly, in Boumediene v. Bush, the 2008 case about the rights of accused terrorists, he excoriated the Bush administration and the Congress. “To hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, say ‘what the law is,’ ” he wrote, quoting Chief Justice John Marshall’s famous words from 1803 in Marbury v. Madison. No one relished saying “what the law is” more than Kennedy.

  But in his conservative mode, Kennedy could be shockingly dismissive of women’s autonomy, as in Gonzales v. Carhart, the 2007 late-term abortion law case. He also wrote the most notorious sentence in the majority opinion in Bush v. Gore, acknowledging that the Court acted for the sole benefit of George W. Bush: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Kennedy was not a moderate but an extremist—of varied enthusiasms.

  All of the justices knew that Kennedy’s views were most extreme when it came to the First Amendment. (Independently, several different justices would say Kennedy had “a thing” about the First Amendment.) In the Roberts Court, there was a broad consensus about protecting freedom of speech. Many areas of the law that had once been controversial, such as the suppression of dangerous or unpopular views, were resolved with little disagreement. Even in a legal system that protects free speech, though, the government had long been able to regulate speech in all kinds of ways. Copyright infringement was subject to civil and criminal remedies; extortion and other verbal crimes were routinely punished. Campaign contributions, if they were considered “speech” at all, had been regulated for more than a century.

  But Kennedy had an almost Pavlovian receptivity to arguments that the government had unduly restricted freedom of speech—especially in the area of campaign finance. Throughout his long tenure, Kennedy had dissented, often in strident terms, when his colleagues upheld regulations in that area. And as the possessor of probably the biggest ego on the Court (always a hotly contested designation among the justices), Kennedy loved writing high-profile opinions.

  Roberts knew just what he would get when he assigned Citizens United to Kennedy. After all, Kennedy had written an opinion for the Court after the case was argued the first time. During his confirmation hearing, Roberts made much of his judicial modesty, his respect for precedent, saying that he was just an umpire on the playing field of the law. If the chief had written Citizens United, he would have been criticized for hypocrisy. But by giving the opinion to Kennedy, Roberts sidestepped the attacks and still achieved the far-reaching result he wanted.

  Kennedy did not di
sappoint him. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people,” he wrote for the Court in his familiar rolling cadence. “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” These rhetorical flights were a long way from the gritty business of raising and spending campaign money.

  Kennedy often saw First Amendment issues in terms of abstractions. At its core, Citizens United concerned a law that set aside a brief period of time (shortly before elections) when corporations could not fund political commercials. To Kennedy, this was nothing more than censorship: “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.”

  Citizens United was a simple case for Kennedy. “The Court has recognized that First Amendment protection extends to corporations,” he wrote. This had been true since 1886, and speech, especially political speech, could never be impeded. “The censorship we now confront is vast in its reach,” Kennedy continued. “The Government has muffled the voices that best represent the most significant segments of the economy. And the electorate has been deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.