BOOK REVIEW
A Divided Court
and the Power
of “Five”
BY HON. GEORGE T. ANAGNOST
As the story goes,
the correct
answer was “five.” Justice Brennan would
convene his new clerks and pose a simple
question: “In a word or two, what is our
mission, when parties bring a case here,
what is our goal?”
Expected replies such as “due process,”
“justice” and “fairness” missed the mark.
“Five” was the correct answer because, lofty
ideals aside, obtaining five votes out of nine
justices was the critical pathway to victory.
In her new book, National Law Journal
correspondent Marcia Coyle provides an
excellent perspective on the Court’s Terms
under Chief Justice John Roberts, who was
appointed to replace William H. Rehnquist
in 2005. With fluid style and in-depth factual references, her examination of the personalities and politics of the justices and the
highly charged social and cultural pressures
that increasingly surround the Court makes
for good reading all the way around. In
compact fashion, she provides lots of personal glimpses, legal history, case summaries
and information.
The Roberts Court has stabilized at
accepting merit review of some 80 of the
8,000 petitions for certiorari that it receives
each year (in prior years, the Court had rendered formal opinions in perhaps 150 to
200 cases). As one instance of how cases
may invite numerous stakeholders, in the
Affordable Car Act controversy, the Court
accepted 150 amici briefs. And getting to
the Court is very much in the hands of specialist attorneys. Fees in the range of
$250,000 to perfect an appeal and argue a
HON. GEORGE T. ANAGNOST is the presiding
judge for the Peoria Municipal Court.
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A R I Z O N A AT T O R N E Y O C T O B E R 2 0 1 3
case to the Court
are not out of the
question.
In
Washington parlance, the selection
process to hire
potentially highpriced counsel is
known as the
“beauty contest.”
Through the
lens of four highly
contested landmark rulings dealing with race (the
Seattle-Louisville
high school cases),
guns (Heller and
The Roberts Court:
the D.C. no-handThe
Struggle
for
the Constitution
gun ordinance),
By Marcia Coyle
campaign funding
(Citizens United),
Cloth, 416 pages
and national health
Simon & Schuster
care (NFIB v.
2013, $28
Notes, Bibliography, List of Key Decisions, Photos, Index
Sibelius), Coyle
makes a compelling case that,
with the departure of Sandra Day dant, and longstanding cases and statutes
O’Connor and the arrival of Justices have been re-formulated and given new
Roberts and Alito, the Court’s center point interpretations. The anti-segregation basis
has moved. Five-to-four decisions reveal of Brown v. Board of Education has given
strongly held feelings; the power of “five” way to a race-neutral approach. In Heller,
and strategizing to obtain one justice’s vote for the first time, the “militia” preamble of
the Second Amendment was separated
is still in the forefront.
In his confirmation hearings, Chief from the “operative” right of the people to
Justice Roberts likened his role to the base- bear arms. In Citizens United, the five-jusball umpire tasked to “call them as they see tice majority opinion departed from legislathem.” Stare decisis et non quieta movere tion banning corporate and labor union
was his mantra. At his confirmation, Justice expenditures that had been enacted in
Alito echoed a similar message. As Coyle 1947.
The book’s subtitle—“the Struggle for
shows, conservative viewpoints are ascen-
w w w . a z b a r. o r g / A Z A t t o r n e y
BOOK REVIEW
the Constitution”—captures the significance of Coyle’s work. As many constitutional law scholars have observed, the U.S.
Constitution sets forth both prescriptive
facts (“the president shall be at least thirtyfive years of age”) and abstract values
(every state shall be guaranteed a
“Republican Form of Government”; the
people shall be free from “unreasonable”
searches). Nevertheless, to aid in interpreting its many provisions, there are no “official” minutes of the proceedings of the
1787 Convention. (At his own direction,
Madison’s oft-cited private notes remained
The Least Dangerous Branch
In Federalist Paper No. 75,
Alexander Hamilton, writing as
Publius, invoked the well-known
phrase that the Court had neither the power of the sword or
purse and argued that judicial
review would safeguard the people from legislative and executive
excesses. For legal scholars like
Alexander Bickel, the “countermajoritarian” power of an
unelected court to override the
will of the people was criticized.
The debate over “originalism”
versus a “living constitution,”
and strict versus liberal construction is still with us.
Justice Scalia is a vocal proponent of originalism and the
notion that the “public understanding” of the Constitution should
govern. In an interview in his chambers, he supposedly said that a
law allowing for the “notching of ears” might not make sense but it
would not violate the Eighth Amendment.
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unpublished until his death.) Even within
its plain text, there are semantic issues.
When Vice President John Tyler succeeded
to the office of the president in 1841,
Whigs and Democrats disagreed over the
meaning of the word “same” in Article II as
to the nature of his tenure and powers. The
Homo Economicus?
When the Court in 1942 affirmed a $117 assessment against Roscoe Filburn and held that wheat
produced and used on his farm was still part of
interstate commerce, previous distinctions like
“direct versus indirect” and “manufacture versus
commerce” were abandoned. When Justice
Roberts opined that the interstate commerce
power embraced an “active versus inactive” component to rule that the individual mandate was
beyond the reach of Congress’s interstate commerce power, he crafted a new test.
Was medical science overlooked? According
to Dr. Mohamed Gaballa, Director, Center for
Cardiovascular Research at Banner Sun Health:
In terms of physiology, there is no such thing
as an “inactive” human. The human body
constantly undergoes change, and no human
is medically static at any age in life. Heart tissue, for example, can display profound change
in a matter of weeks, all with accompanying
and variable health costs to the system.
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Relativity Arrives
“privileges and immunities” clause
has been the source of controversy
for decades.
The Roberts Court will no
doubt continue to grapple with
equal protection, religious expression, privacy, states’ rights and separation of powers, all volatile issues
that have persisted since the
Constitution was adopted. Whether
we like it or not, Marcia Coyle takes
us to the brink of a stark reality: As
America faces complex and difficult
questions that touch upon the legal
rights of its citizens and the nature
of sovereignty itself, the U.S.
Constitution takes on aspects of a
Da Vinci Code novel where one
must sort through faint clues and
unknowns to find one’s way.
The next worthy question is
whether following the marble steps
leading up to the “least dangerous
branch” will yield the answers
America seeks. AZ
AT
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After World War I,
intellectual
thought began
to question
the foundations of legal
reasoning just
as it had in the
realms of science
and philosophy.
Classic logic and syllogisms seemed unresponsive
to understanding the actual sources or meaning of law. By
the 1920s and 1930s, new schools of thought, such as sociological jurisprudence and legal realism, posited that the law
and legislation were relative and not objectively determined.
While Salvador Dali preferred to let others explain his art, many interpreted
“The Persistence of Memory” (1931) as symbolic of the upheaval of the atomic age
and the relativity of time and space.
O C T O B E R 2 0 1 3 A R I Z O N A AT T O R N E Y
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