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American Justice 2014

American Justice 2014: Nine Clashing Visions on the Supreme Court

Garrett Epps
Copyright Date: 2014
Pages: 192
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    American Justice 2014
    Book Description:

    In this provocative and insightful book, constitutional scholar and journalist Garrett Epps reviews the key decisions of the 2013-2014 Supreme Court term through the words of the nation's nine most powerful legal authorities. Epps succinctly outlines one opinion or dissent from each of the justices during the recent term, using it to illuminate the political and ideological views that prevail on the Court. The result is a highly readable summary of the term's most controversial cases as well as a probing investigation of the issues and personalities that shape the Court's decisions.

    Accompanied by a concise overview of Supreme Court procedure and brief case summaries,American Justice 2014is an engaging and instructive read for seasoned Court-watchers as well as legal novices eager for an introduction to the least-understood branch of government. This revealing portrait of a year in legal action dramatizes the ways that the Court has come to reflect and encourage the polarization that increasingly defines American politics.

    eISBN: 978-0-8122-9130-8
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. Preface
    (pp. 1-8)
  4. Introduction: The Branch That Works
    (pp. 9-20)

    As late as Friday, there were rumors that the court might not open on time. Since 1917, the first Monday in October had been inviolate as the first day of the court’s October term. But the Republican House and President Obama entered October seemingly locked in a death spiral. The Republican majority, impelled by its radical “Tea Party” wing, had returned from its summer recess with one demand: the president must agree to the repeal of his signature accomplishment, the Affordable Care Act (ACA). It was an extreme, almost surreal, demand. The Supreme Court had upheld the ACA—in most...

  5. Chapter 1 Balls and Strikes: Chief Justice John Roberts—McCutcheon v. Federal Election Commission
    (pp. 21-34)

    John Roberts, nominee for chief justice of the United States, appeared before the Senate Judiciary Committee from September 12 to 15, 2005. Roberts promised the senators, “I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my...

  6. Chapter 2 Justice of Hearts: Justice Sonia Sotomayor—Dissenting, Schuette v. Coalition to Defend Affirmative Action by Any Means Necessary
    (pp. 35-48)

    On December 31, 2013, Sonia Sotomayor stood in Times Square and pressed a button to lower the famous ball, signifying to as many as one million revelers that the New Year had arrived. The entertainment card that night included rock stars Blondie and Melissa Etheridge, rapper Macklemore, and the scandalous twerking rocker Miley Cyrus. But Sotomayor was the headliner.

    It’s hard to imagine a bigger hometown honor for a girl from the Bronx than the Manhattan ball drop—but if there is one, Sotomayor has probably had it. Since 2010, this “Nuyorican” had been named to the Supreme Court, published...

  7. Chapter 3 Empathy for the Devil: Justice Antonin Scalia—Dissenting, Windsor v. United States (Redux)
    (pp. 49-60)

    On the night before the new term of court began,New York Magazinepublished an interview with Justice Antonin Scalia. Among the revelations in that discussion was this one: “I even believe in the devil.”

    The interviewer, reporter Jennifer Senior, asked Scalia to explain. But rather than answer her questions, Scalia used the expression he claimed to see on her face as an excuse for confrontation: “You’re looking at me as though I’m weird,” he said. “My God! Are you so out of touch with most of America, most of which believes in the devil?” Brushing aside her explanation, he...

  8. Chapter 4 Enter Laughing: Justice Elena Kagan—Dissenting, Town of Greece v. Galloway
    (pp. 61-72)

    During the first day of Elena Kagan’s hearing before the Senate Judiciary Committee in 2011, South Carolina Senator Lindsey Graham tried to draw her out on the issue of national security. On December 25, 2010, “Christmas Bomber” Omar Farooq al-Nigeri had attempted to set off explosives in his underwear while aboard a Northwest Airlines flight from Amsterdam to Detroit. When Graham appeared to be alluding to the case, Kagan noted that she should not comment on “an undecided legal issue.” Graham interrupted, “No, I just asked you where you were at on Christmas.”

    Without a discernible pause, Kagan responded, “Like...

  9. Chapter 5 Big Brother: Justice Anthony Kennedy—Hall v. Florida
    (pp. 73-84)

    An old joke asks how many Harvard Business School graduates it takes to change a light bulb. The answer is “One. He holds up the bulb and the universe revolves around him.”

    That quip might be a metaphor for Anthony Kennedy’s role on the Roberts court. Lewis F. Powell Jr. and Sandra Day O’Connor were “swing votes”; they agonized over legal principle and factual nuance before deciding on an approach to a case. Kennedy does not agonize.

    In some areas, such as federal-state relations or affirmative action, he is highly conservative. In others, particularly matters involving gay rights and the...

  10. Chapter 6 In a Different Voice: Justice Clarence Thomas—Susan B. Anthony List v. Driehaus
    (pp. 85-96)

    On Monday, February 24, 2014, the justices emerged from behind the velvet curtain to hear argument in an important regulatory case—Utility Air Regulatory Group v. Environmental Protection Agency, a challenge to the Environmental Protection Agency’s authority to regulate greenhouse gas emissions. The justices peppered the lawyers with questions about the proper way to read a complex regulatory statute in light of changing definitions of “pollutants.” Justice Breyer asked whether the Clean Air Act should be interpreted like “a statute that said you have to throw out all bubble gum that’s been around for more than a month. Well, what...

  11. Chapter 7 Bringer of Chaos: Justice Stephen Breyer—National Labor Relations Board v. Noel Canning
    (pp. 97-108)

    At a public appearance at the Georgetown Law Center in April 2014, Professor David Cole of Georgetown asked Justice Stephen G. Breyer a question about judicial method. “I am a bringer of chaos,” Breyer replied, “and as a bringer of chaos I am not going to answer your question.”

    “Chaos” is not the word one would have most readily associated with Stephen Breyer. Both Breyer’s manner and his writing exude a level of high culture unseen on the court since Oliver Wendell Holmes retired in 1932. For one thing, Breyer is a member by marriage of one of the noble...

  12. Chapter 8 The Alito Court: Justice Samuel Alito—Harris v. Quinn
    (pp. 109-122)

    In his 2011 bookFive Chiefs, retired Justice John Paul Stevens questioned the custom of calling a period of the court’s history by the name of its chief justice. Each new appointment to the court, Stevens argued, creates a new interpersonal dynamic and a new court. Thus, for example, he suggested, the current Roberts court should, since the ascension of Elena Kagan in 2010, be called the Kagan court.

    But a better name came into focus at the end of OT13. This was the Alito court.

    No single appointment of the past generation had shifted the tone and jurisprudence of...

  13. Chapter 9 No Exit: Justice Ruth Bader Ginsburg—Dissenting, Burwell v. Hobby Lobby Stores
    (pp. 123-138)

    In October 2013, Ruth Bader Ginsburg was eighty. She was a double survivor of cancer—colon cancer in 1999 and pancreatic cancer, or a precursor to it, in 2009. Martin Ginsburg, her husband of fifty-six years, had died on a Sunday in June 2010. By all accounts, Ruth and Marty Ginsburg had an exceptionally close and happy marriage.

    Ruth Ginsburg was on the bench the following day.

    In the fall of 2013, Ginsburg told Adam Liptak of theNew York Timesthat she intended to remain on the bench “as long as I can do the job full steam, and...

  14. Epilogue: Justice in Red and Blue
    (pp. 139-148)

    For a few days toward the end of OT13, observers and journalists had whispered about a surprising possibility. What if the term ended not with a bang but with a smile? There had been a remarkable stretch of cases decided by 9–0 votes. In some cases that seemed contentious, one of the conservative majority made common cause with the moderate liberals to produce a narrow result. Thus, inNoel Canning, Kennedy voted for Breyer’s narrow opinion, preserving at least the possibility of “recess appointments” in a future emergency. In a case calledMcCullen v. Coakley, the court voted 9...

  15. Appendix A: A Brief Guide to Supreme Court Procedure
    (pp. 149-160)
  16. Appendix B: Biographies of Current Justices of the Supreme Court
    (pp. 161-170)
  17. Appendix C: Major OT13 Cases Discussed in This Book
    (pp. 171-174)
  18. Further Reading
    (pp. 175-178)