Uncertain Justice: The Roberts Court and the Constitution
By Laurence Tribe and Joshua Matz
Picador
Reviewed by Karl Wolff

The Supreme Court of the United States is the least understood branch of the government. Like the Federal Reserve, it is an elusive institution the general public either knows nothing about or knows only what could charitably be described as misinformation. If people knew more about how the Supreme Court works (and the Federal Reserve, for that matter), it would be less likely to pop up in conspiracy theories or partisan bloviations.

Uncertain Justice: The Roberts Court and the Constitution, by Laurence Tribe and Joshua Matz helps illuminate the inner workings of the Court. Tribe and Matz also give succinct portraits of all nine justices, their histories, personalities, and individual interpretation of how justice works. Tribe, a constitutional law professor at Harvard, and Matz, a Harvard Law School graduate and SCOTUSblog writer, team up to offer a sober assessment of the Roberts Court and its major rulings. (It should be noted that Uncertain Justice came out in July 2014. Certain cases, including Sibelius, popularly known as "The Hobby Lobby case" had yet to be decided. This does nothing to detract from the material in the book though.)* The great thing about this book is one doesn't have to be a legal scholar, attorney, or political junkie to appreciate it. The law effects all of us.

Laurence Tribe's students included Barack Obama, John Roberts, Elena Kagan. This adds a fascinating relevancy to the book. Tribe has also argued in front of the Supreme Court, avoiding the caricature of a professor sequestered in the Ivory Tower, isolated from society-at-large. As a Harvard Law Professor, Tribe offers the reader not only the historical background of major cases, but the specific legal, ideological, and cultural baggage each case carries. All the greatest hits are here: gun control, abortion, free speech, healthcare, privacy, and presidential power.

Uncertain Justice is an early assessment of the Roberts Court. Chief Justice John Roberts is the 17th Chief Justice of the United States, nominated by President George W. Bush in 2005. He took over as Chief Justice after the death of Chief Justice William Rehnquist. Like Rehnquist, Roberts is a conservative jurist. While the general public's attitude towards the law has moved slowly to the left, the Supreme Court remains a conservative bulwark.

President Obama has nominated two justices to the Court, but Republican presidents have had the opportunity to nominate four Chief Justices (Earl Warren, Warren Burger, William Rehnquist, and John Roberts). I bring this up not to provoke partisan squabbling, but for readers to take the long view. Despite the imperious title, the Chief Justice is more of an administrative role in the Court. He - until history proves otherwise - assigns cases to specific justices. Although the Chief Justice lacks the authority to write decisions, unless he assigns the case to himself, it is his name in the history books. The Warren Court is now known as a time of liberal change and increased rights. The Taney Court (of Dred Scott v. Stanford) is remembered as the most detested in United States history. Ten years in, where does the Roberts Court stack up?

While characterized as a liberal law professor, Tribe doesn't let his personal ideology overshadow the proceedings. One of the wonderful things about reading Uncertain Justice was how Tribe and Matz articulated arguments from both sides. In some cases it was a challenge to bring myself to make a judgment call. Not because of personal ambivalence, but because each side presented valid arguments. And unlike trial law, an arena of emotions and lurid details, when one argues in front of the Supreme Court, one is intellectually parsing language and wrestling with abstract concepts. Then one applies these to the case at hand. The stakes are huge and the consequences are either revolutionary or devastating, depending what side you are on. Luckily law operates in a more complex yet simple fashion than basic partisan divisiveness. Upon reaching this plateau of jurisprudence, at least ideally, one hopes it doesn't get reduced to "the Republican side" versus "the Democratic side." The questions argued before the Court shouldn't boil down to knee-jerk party tribalism. Leave that for the campaign trail.

In the book, Tribe and Matz discuss a test used by elite law firms: "if you had to eliminate half of the amendments in the Constitution, would you eliminate the odd- or even-numbered rights?" A knee-jerk response would include saying odd, because of the First Amendment, or even, because of the Second Amendment. The authors go on to explain how this is actually a trick question, but use it as a thought experiment. While each amendment is important, the Constitution, Bill of Rights, and additional amendments is a living "machine" with interrelated parts. Amendments are dependent on each other and cannot function alone. While freedom of expression is very important, so is equal protection. But how they interrelate becomes dependent on the individual justice's interpretation of the Constitution itself as it applies to the case at hand.

Tribe and Matz examine each case through two perspectives. The first is the narrative. The story of the individual and their claim. The second perspective is case genealogy. Supreme Court cases, like constitutional amendments, are interrelated. Brown v. Board can be traced back to Plessy v. Ferguson and Dred Scott v. Sanford. Though not immediately apparent, Brown also has roots in Korematsu v. United States, a case involving the wartime internment of Japanese-Americans. The Court upheld the racial segregation of Korematsu in 1944 on the grounds of "national security." Since racial segregation of "separate but equal" had no national security component, it weakened the justifications for the practice. When it comes to matters of free expression, privacy, gun control, and abortion, a working knowledge of case genealogy is very important. Both to understand what is being argued and to observe the trends occurring in American jurisprudence. In the case of abortion, the Right has abandoned the fight for the wholesale repeal of Roe v. Wade. Instead the fight has evolved into creating legislation that limits access.

Nine people make up the Supreme Court, but unlike the other branches, the arguments are ideological not partisan, a crucial distinction. The Court is very small and its important decisions are not televised. In today's hyper-mediated, image-saturated culture, one would think this means they are secretive. Tribe argues to the contrary, noting that there are no cameras because of what the justices write, not what they say. While some justices have been notorious for their public appearances (Justice Scalia most notably), during their session on the Court, they keep away from the public eye. It would be devastating to the process of American democracy if we had Supreme Court justices show-boating to the camera. Some cases involve incredibly pivotal decision-making. This would be ruined if they had to act like a lowly member of Congress or the President.

The "balance of powers" works because each branch has different strengths and weaknesses. The Supreme Court, unlike the President and Congress, is notable as a deliberative body and issuing decisions based on interpretation. Ideally, Congress and the President represent the nation's popular opinion, the Supreme Court should not. The challenge becomes issuing decisions whose time have come, but not making rash decisions based on the whims of public opinion. In the end, Supreme Court is about rendering a judgment, making a decision that will effect everyone.

Right now the Court is challenged by "political gridlock, cultural change, and technological progress." Just as the Federal Reserve is the lender of last resort, the Supreme Court is final arbiter of justice. The Roberts Court continues the conservative interpretation of jurisprudence, but making that interpretation effective relies on a majority of justices. Unfortunately the present Court, like our other branches, is divided. Supreme Court reporting has devolved into answering one question, "What will Justice Anthony Kennedy say?" Kennedy has become the reliable centrist between the Court's conservative and liberal wings. Hence the abundance of 5-4 rulings.

What has typified this Court is its disdain for "judicial overreach" and its preference for "legislative redress." If the Court has ruled against you, talk to your Senator or Representative about drafting a law to counter it. (Cue hysterical outbreak of words like inequality, oligarchy, and Citizens United references.) This is a cautious Court, one that doesn't seek to create new sweeping new law. It is the antithesis of the Warren Court. With that in mind, there are other ways to seek redress besides the Supreme Court. Protests, boycotts, awareness campaigns, lobbying, and elections are all means to an end. The end being: a law that changes things. Whether that law is constitutional? Well ...

Why am I including a Supreme Court book on a literary website? Because judicial decisions are like book reviews, judgment is rendered through interpretation and this can be controversial and divisive. Unlike book reviews, Supreme Court decisions should not be about "personal taste." Deeming a statute constitutional or not depends on the interpretive framework of the nine justices. Things get more tricky when ideology enters the fray.

For those interested in the Supreme Court (its history, personalities, major decisions, etc.) I would highly recommend Jeffrey Toobin's The Nine: Inside the Secret World of the Supreme Court, Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices by Noah Feldman, and The Brethren: Inside the Supreme Court by Bob Woodward and Scott Armstrong.

*While Uncertain Justice could easily fall into the category of Current Affairs, it possesses the academic rigor and easy readability that pushes it above the Current Affairs category. Current Affairs is a motley mongrel category, embracing everything from cogent analyses of topical subject matter to the latest ghostwritten swill written by a morning political talk show host. Current Affairs usually means Immediately Obsolete. In the case of Uncertain Justice, it is legal commentary aimed for a popular, non-specialist audience.

http://www.cclapcenter.com/2015/06/book_review_uncertain_justice_.html ( )

The US Supreme Court decisions give us the meaning of constitutional rights found in the US Constitution. Its precedents set the constitucional law, pointing the way in with lower courts should decide a vast array of cases. The book examined the Roberts Court, referring to the decisions adopted until the 2013/2014 term. Gender equality, the right to privacy, States and Union rights, campaign finances are some of the points explored. When two constitucional values collide in a judicial case, the final decision is unpredictable. The outcome is uncertain but, as long as different points of view are considered and one history and tradition are concerned, justice is served. ( )

It was a pleasure to read a book so well written both in content, grammar and passion. To me it was obvious reading these authors work on how they perceive the early Roberts era Courts Justices mind work to reach their arguments and votes on landmark cases discussed in this volume. The authors take a mostly objective look at the rulings that show a complex pattern of thought that can not be divided as a simple conservative vs. liberal factions. Each decision is based on the individual background of the justices and their understanding of Constitutional Law, Precedents and U.S. Tradition. Most reveling to those who read the book who are not constitutional lawyers is how the courts rulings are not as most of use understand them to be. Many recent rulings have narrow immediate effect but all rulings will have wide long term effects on the judicial system. This book is a must read for anyone who is in the legal profession or interested in our jurisprudence system. ( )

Tribe, Matz, Uncertain Justice (2014).

The nine justices of the Supreme Court issue more than seventy opinions per year. The authors have taken up the challenge to make sense of the Court’s rulings since 2005 when John G. Roberts was appointed Chief Justice. This book is “an effort to understand the Roberts court”. [2] The authors introduce the attempt with an array of reasons for why Judicial opinions may “defy easy comprehension”. After carefully reviewing the array of opinions across the most important topics, the authors conclude that the Roberts court leaves a legacy of Uncertainty.

I highly recommend this book. For anyone who is interested in understanding what the “law of the land” is with respect to imminent issues, it will help. The details and arguments are neatly provided – about guns, free speech, prisoner detention, health care, the crisis of governmental dysfunction, and privacy, among others. The authors have a bold and yet warm approach to the cases and Justices, and permit the reader to arrive at fact-based conclusions which are not forced.
Of course, the evidence is damning: Since 2005, the Court is in a state of chaos and it is issuing Opinions with a chorus of Dissents which are not helpful to anyone. In working through the examples of this Court, one can only agree with the authors that “Many of the most important stories of the Roberts Court consist not of definitive rulings but of the portents and fault lines that lurk in opinions and hint at what lies ahead”. [3] This is nicely worded, but it describes chaos. The parties and their attorneys have almost certainly been misled, and we are all left with the naked certainty of deliberately caused and increasing uncertainty.

Indeed, the characteristic is so pervasive that the authors take “uncertainty” as the leitmotif of the Roberts Court. The Court's self-sabotaging uncertainty is the entry point of their analysis of these rulings. [3] There is really no "nice" way to put this, although the authors try:

“In some domains of constitutional law, a majority of the Roberts Court stands on the brink of revolution yet seems profoundly uncertain about whether and how to proceed. In other domains, it has already initiated major changes whose long-term effects are clouded in mystery. Some of these developments reflect a desire by the justices to remake our constitutional understanding, while others have been forced by dramatic cultural, technological, and political upheaval.”

The authors document this inexcusable fact about the Roberts Court across nine important topics addressed by numerous Opinions:

1. “Equality. Are We There Yet?

In 1978, Justice Harry Blackmun invoked precedence to declare that “in order to get beyond racism, we must first take account of race.” [17] This is a logical reflection of the reality and “history that doesn’t go away”, as President Obama observed in comments on the Trayvon Martin case in 2013.[17] Yet Blackmun’s efforts are now firmly rejected by Chief Justice Roberts, and Justices Scalia, Thomas, and Alito. “The whole point of the Equal Protection Clause,”, Roberts declared in 2013, “is to take race off the table.”
The principle of “Equality” is “explosive” on the Roberts Court. [18] And the progress of gay rights “surprised” many on the court. [18] Discrimination takes many forms. Justice Sotomayer noted that a federal prosecutor had “tapped a deep and sorry vein of racial prejudice” in using a pejorative racial stereotype to inflame a jury into convicting a defendant. And centuries of segregated education have left scars. But today, instead of remedying the damage, the trend has been to re-segregate. [20] In the 2007 Parents Involved case, Roberts, Thomas, Kennedy, Breyer, and Stevens wrote separate opinions which shattered any sense of what the landmark 1954 school desegregation case of Brown means. Breyer read his Dissent, joined by Stevens, saying “The majority is wrong...the decision the court and the Nation will come to regret”. [22] As Kennedy points out, there is nothing in the Constitution which mandates that schools must accept the status quo of racial isolation in schools. The Fisher opinion sent the dispute back to the school to figure out how to apply its completely incompatible principles. [32]

Voting rights have also been dismantled. Roberts fought the Voting Rights Act since working for the Reagan administration in 1982 [34]. While conceding the fact that the VRA has achieved great things, especially in the South, Justice Roberts in Shelby County condemns the “heavy and persistent burden on the equal sovereignty of the states”. [36] Of course, he fails to show a single State suffering a single actual burden. Ginsburg’s dissent spelled out how racial gerrymandering and voting restrictions which burden both the States and the voters. [37]

As the authors point out, “The opinions in Parents Involved, Fisher, and Shelby County are shot through with incompatible lessons from our past and prescriptions for the future.”

Gay rights and the question of marriage equality were confused by Scalia’s attack on the “homosexual agenda” he saw in Kennedy’s Opinion in the Lawrence case. Again, Alito, Roberts, and Scalia dissenting separately in the Windsor challenge to DOMA, which harms homosexuals and writes inequality into the Code.[50]

2. Healthcare: Liberty on the Line.

Congress passed the ACA, the President signed it, and legal challenges were lodged with the Supreme Court. “Challenges to the ACA channeled and magnified demands that the Court restore the Constitution to a role it hadn’t played in more than seventy-five years”, and with legal arguments which struck many experts as “far-fetched”. [53] The ACA, however, survived by a single vote, cast by Chief Justice Roberts, and in spite of his desire to limit scope of federal power. The authors note that National Federation of Independent Business v Sebelius case is one of the most “misunderstood” decisions in American history.

The authors indulge in telling the story going back to the Progressive Era of 1912. Teddy Roosevelt advocated insurance programs for the hazards of life. FDR managed to establish Social Security only by compromising on universal health care. LBJ signed Medicare into law in the Truman Library as an act of tribute to its pervious champion. Watergate overshadowed Nixon’s compromise with Kennedy over national healthcare, and Clinton’s efforts were burned by a Party reversal in the 1994 midterm elections.

The ACA is described fairly as resting on three simple pillars [56]: First, it aims at universal coverage, with an expansion of state Medicaid programs at federal expense; subsidies for middle-income insurance; and a “exchange” where consumers could shop for private insurance policies. Second, the law regulated health insurance company restrictions that excluded millions of Americans from the market. For example, banning preexisting conditions, or higher premiums based on “community ratings”.

Finally, the law mandated people to buy qualified plans unless already covered by Medicaid, Medicare, or their employers. This “individual mandate” is enforced by the imposition of a “shared responsibility payment” levied as part of the federal income tax. This mandate was initially opposed by President Obama [56], and was “originally a conservative idea” cooked up in the late 1980s [56] which preserves the role of private insurance companies as an alternative to a single-payer government-run program.

Although the ACA survived the challenge, part of it was struck down by the five conservatives jointed by Breyer and Kagan: The Medicaid expansion. The ACA includes provisions for noncompliant states which cut their Medicaid funding, since claims would be aggravated by lack of participation. The Opinion held that this rule constituted “impermissible coercion” by the government, even though the Medicaid expansion was almost entirely federally funded. [60] There is no Constitutional basis for the suggestion of coercion.

The authors dissect the Roberts Opinion on the health care law, including Ginzburg’s partial dissent joined by Breyer, Sotomayor and Kagan, and the four separate dissents filed by Scalia, Kennedy, Thomas and Alito. The opinions display “contradictory views of American freedom and federalism”. [68]

The Health Care Case reveals “fault lines that divide not only the Roberts Court but the broad expanse of American history”. [68] The authors attempt to reconcile the history with a review of American political thought going back to the framers. Ironically, the authors turn to “libertarian” economists in their notes [Note 57], and not to any actual framers. That is what the Justices did: The actual Framers disappear. The authors note the Solicitor General Verrilli’s insistence that Government is not only able to enhance freedom, but is essential to it. [70] Former Speaker Pelosi described the ACA as creating the opportunity for affordable health care for all American to have the freedom to have a happier life.” While Paul Clement argued that “the mandate’s threat to liberty is obvious”, and “it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not”. [71] In fact, the ACA does not force anyone to purchase insurance. It does provide remedies to fund the cost of such refusals.

The authors examine the fact that the Constitution specifically protects certain property and contract rights, and enshrines free speech and due process safeguards, but “enumerated no general right to economic liberty” free of all regulation. [72] Indeed, the “Lochner era” of the late nineteenth century is widely-condemned, and precedence now thwarts libertarian efforts to resurrect unenumerated economic “liberties”. [73] “The only justice who has even gestured in that direction is Thomas, and on this point he is a true outlier.” Laws that burden economic choice alone need only be supported by a conceivable rational basis, and the Court plays no role in usurping the legislative function.

The ACA is not vulnerable to direct attack for violating a protected right, and its challengers had to rely on principles of federalism. [74] The authors expand on the idea of federalism as a key element of American Constitutional order. However, by contrasting the views of the Roberts Court with Madison, Justice Marshall (in the Marbury case), and other framers, and showing that Ginsburg’s protestations on the role of the Court are correct. Those challenging the ACA using a belief in “state-centric governance” rallied against federal power, but they fall to the limits of the Supreme Court itself as a federal power, operating within the limits of judicial power. [83]

Without providing any clarity or practical guidelines, the Justices in the conservative block have marked “a new and momentous development in conservative efforts to articulate judicially enforceable constitutional limits on Congress”. [86] And they do it without any sense of the irony of their power as a federal institution. [The authors do not touch upon the fact that in Bush vs Gore, the SCOTUS over-ruled the Supreme Court of Florida on Justice Scalia’s unprecedented “Equal Protection” grounds].

3. Campaign Finance: Follow the Money.

In the Citizen’s United opinion, Chief Justice Roberts asserted that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption”. Stephen Colbert, using his national platform on Comedy Central, showed how easy it is for groups with corporate funds to coordinate “independent” activities with candidates, and so to corrupt and capture our public officials. Colbert showed how Karl Rove’s secretive Super PAC, Cross-roads GPS, was funded by anonymous millionaires, whose intentions are “not clear”. [88-89] Colbert actually out-polled several other real candidates in the South Carolina Republican primary. In early 2012, Colbert’s fake Super PAC had raised $1,023,121. [90]

Citizen’s United “became a focal point for debates about the evaporation of faith in responsive government”. In this light, the authors ask What role should government play in efforts to affect how and where money flows through the electoral system?” [91] Five justices have “re-shaped the architecture of money, influence, and political organization”, transforming how America conducts – and funds – politics. On his retirement, Justice Stevens described this Opinion as “a serious mistake”, a sentiment echoed by Justice Breyer. [95]

In discussing campaign funding and regulation, the authors again provide some historical background as drawn through the precedence of pre-Roberts court opinions. And carefully review subsequent cases – SpeechNow v FEC, Doe v Reed, and the flood of briefs for rehearing Citizens United. The majority met it with a stone-cold denial, upholding its own reversal of the Supreme Court of Montana. [Again, we have the spectacle of SCOTUS overthrowing State Supreme Court decisions in the name of "State sovereignty" and Rights.]

In Bennet, the Roberts court foreclosed a promising approach to public funding, although the Chief Justice insisted that his ruling did not address “all” public funding. And in the Blumen case, the court ducked the issue raised by President Obama about whether a foreign corporation can influence an American election. In Caperton, Justice Kennedy writing for the majority reversed the West Virginia Supreme Court where a judge had raised funds from Massey Coal Company and then cast the deciding vote to overturn a $50 million dollar jury verdict against it. To avoid a flood of challenges to every ruling by an elected judge, Kennedy then “emphasized that Caperton truly was an extraordinary case”. (!)[119]

Today, the Court has over-ruled its own precedence which allowed Congress latitude to limit speech by invoking a broad anti-corruption interest. A five-justice majority is foreclosing most efforts to regulate campaign finance–and the floodgates of corruption are wide open. The authors note that the Court has moved us “ever closer to a world in which government is stripped of nearly all power over money in politics”. [120]

4. Freedom of Speech: Sex, Lies, and Video games.

The authors, bound only by a sense of duty, dive into the efforts of this Court to explain what makes frank depictions of sex dangerous. What is harmful about obscenity? And how to explain the wild fluctuations of the Court’s logic? The authors note that such “instability is uniquely troubling for free speech because excessive uncertainty about the limits of the criminal law can chill even innocent expression”. [121]

The authors painfully reveal the fact that this Court steps from protecting “free speech” First Amendment rights for corporations to be free of campaign laws, to quietly denying protection for those who often need it most. Here, the authors present a detailed examination of the “originalist” theories of Scalia and Thomas, which are hypocritically exercised by them. The modern view championed by Brandeis and Holmes, and even Jackson and Blackmun, is explicated. [125]

But the Roberts Court “free speech rulings tend to sideline this messy history of judge-made laws”. Instead, the justices are “deliberately selective in their collective memory. When they talk about the framers, they often borrow mythical narratives that their predecessors fabricated decades ago to justify doctrinal innovation.” [126]

The Court has issued a landmark ruling on a case testing the federal law that bans “material support or resources” to any terrorist group. Holder v Humanitarian Law Project (HLP). Problem is, no one can understand the Opinion on this important matter. The Supreme Court tells the lower courts to defer to the government when it bans speech during war time, so long as “informed judgment” backs up the government censorship. This give no one any real guidance. The authors note that “judicial second-guessing of the political branches is always perilous in international conflict”. [131]

In the Banks case, a prison inmate sued the state for banning access to newspapers. Six Justices supported the ban. HLP and Banks marginalize the judiciary in protecting free speech, that is, for everyone except the international mega-corporations that claim that their secret donations to lobbies and candidates are forms of “speech”.

And in Brown v Entertainment, the majority Opinion written by Scalia struck down a California law that restricted the sale of violent video games to minors without parental consent. Interestingly, Thomas, Alito and Breyer strongly disagreed with Scalia’s sweeping prohibition against the “minor” abridgement of access to violent video games. Thomas, “still walking the lonely path he marked in Morse, composed an essay about the colonial period to explain why the First Amendment” does not protect minors. [141] Alito, sometimes known as “Scalito”, assailed Scalia from the opposite direction. Hewing more to the traditional values Burkeian notion that “the individual is foolish but the species is wise”. [142] Because of the interactive nature of Video games, they are unprecedented, and require “different rules”, which he still struck down but on the grounds that in this instance the rule (simply requiring parental consent), was “vague”. Breyer challenged the rigid doctrinal application of Scalia that allowed kids access to violent activities, but not pornography: “What kind of First Amendment would permit the government to protect children by restricting sales of [an] extremely violent video game only when the woman–bound, gagged, tortured, and killed–is also topless?” [143]

Finally, Breyer highlighted the values other than liberty that the majority simply disregarded: “This case is ultimately less about censorship that it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work.” [143] Well, he certainly hit that nail–pointing out to the world the naked fact that there are interests parading under color of “liberty” that are in fact committed to simply making the government dysfunctional.

The authors then turn to the unanimous Opinion in US v Stevens. Justice Kagan recused herself because she argued the case as then-Solicitor General, unsuccessfully. The case involved a federal law designed to thwart the sale of “crush videos”– gruesome displays of torture. Alito summarized a kitten crush video in his solo dissent: “A kitten secured to the ground, watches and shrieks in pain as a woman thrusts her high-heeled shoe into its body, slams her heel into the kitten’s eye socket and mouth loudly fracturing its skull, and stomps repeatedly on the animal’s head. The kitten hemorrhages blood, screams blindly in pain, and is ultimately left in a moist pile of blood-soaked hair and bone.” Our Supreme Court "conservatives" struck down the duly-enacted law criminalizing the manufacture and sale of such works. [143]

The authors point out that the “history” taken by Roberts and Scalia is “questionable”. The Justices err in claiming an originalist obscenity exception to the absolute prohibition of the First Amendment, because the exception took shape in the Eisenhower and Nixon eras, not through big public opinions in 1791. [146] Even “unprotected” speech gets protection–citing the defamation cases levied by Southern states against Northern newspapers during the civil rights movement.

After reviewing other important First Amendment decisions, the authors point out that partly because of Brown and Snyder, “the Roberts Court enjoys a strong ‘pro-speech’ reputation. Appearances deceive. A closer look reveals that the Court is deeply torn over its vision of free speech.” [153] Not “libertarian” at all, and not consistent, and deeply divided and filled with expressed “reservations”. Morse, Garcetti, Brown and Alvarez are important cases which prevailed by a single vote.

The Chapter concludes: “Meanwhile, the First Amendment beats on, a sometimes skipperless boat drifting deeper into uncertain waters, ruddered only imperfectly by selected values and stories drawn from our murky past”. [153]

5. Gun Rights: Armed and Dangerous.

In 2008, the Court ruled for the first time in history that a federal firearms law violated the Second Amendment. Justice Scalia held in District of Columbia v. Heller that the Constitution protects an individual right to keep and bear arms against federal regulation. This is a position that was never even suggested until the late 1900s, but had robust GOP and NRA support after the election of President Obama. Two years later, in McDonald v Chicago, the Court recognized a new right to armed self-defense that expanded Heller to protect individual gun users against State and local gun regulations. [155].

These decisions broke new ground and are unprecedented. “Even more striking, the Court declined to offer guidance on how Second Amendment analysis works when a gun regulation is challenged in court.” [155] The Supreme Courts preserves “gun rights” under a shadow of terrible danger. The American public now has a newly-recognized right, “but can only guess at the full scope” of what it means. [156]

And “not coincidentally, our heavily-armed nation also suffers from an epidemic of gun-related violence”. On an average day, 33 Americans are slain by assailants with guns, and in addition to the 12,000 homicides, guns are used in nearly 19,000 suicides each year. Americans are more likely to die from gunfire than from any disease.

The semi-automatic weapon massacre in an Aurora movie theater was followed by the Sandy Hook attack by Adam Lanza in Newtown, Connecticut. Yet gun rights supporters maintain that “safety is best enhanced through wider availability of firearms, warning that “reforms” would infringe on liberty. [159]

What are the limits on gun regulation imposed by the Second Amendment? Before 2008 and Heller, unanimous courts had upheld gun regulation, and a 1939 case of Miller viewed a ban on sawed-off shot-guns as permissible since the Second was understood to protect a “collective right” associated with “well-regulated State militia”.

The Scalia opinion sets aside precedence and stare decisis and replaces judicial traditions with a new theory of “originalism” that claims exclusive legitimacy rising from what selected “Founders” are believed to have believed in 1791. “Originalism”, claims Scalia, “establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself. Anything else lacks legitimacy.” [164] The Heller opinion is devoted to dozens of pages ranging over extra-judicial non-scientific and historically-insignificant sources from the 1600s to the 1900s.

The authors dissect the pretensions of “originalism” as practiced by Scalia and Thomas. Both Justices added words to the Second Amendment that the Founders did not use, and removed words that were used. Stevens used the same “technique” – his dissent is “a marvel of historical craft” – to arrive at the opposite conclusion: That guns are not an individual right removed from “a well-regulated militia”.

The authors review the “cacophony of opinions” generated by Heller and McDonald. Without actually saying that the “story” relied upon by the originalist Justices is fabricated, and challenged by most historians, the authors expose the fact that behind Scalia’s confidence and Thomas’ conviction, there is no theory or legitimacy which other judges, lawyers, or the public can use.

Somehow, the authors conclude, individual gun rights are now “the law of the land”, forging a new right, and leaving in its wake “a morass of conflicting lower court opinions”. [169] Six years on, and “our ability to account for the danger of unregulated guns and evolving societal conditions in crafting Second Amendment law” is in disarray.

The authors quote the Harvard Law professor, Mary Ann Glendon, who cautioned “A tendency to frame nearly every social controversy in terms of a clash of rights...impedes compromise, mutual understanding, and the discovery of common ground.” [182] The Court has directed attention away from the responsibilities we bear as citizens, and away from the public policy tool kit available to us as we address the complex causes of gun violence.

In other words, Justice Scalia’s “fixation on rights can interfere with democratic dialogue.” The Court opened a can of chaos and uncertainty, and scorched the common ground we seek.

6. Presidential Power: Hail to the Chief.

John G Roberts Jr assumed the “stewardship” of the Court in 2005 “at a pivotal moment in our history”. [186]. After 9/11, George W. Bush declared a “war on terror” and laid claim to extraordinary powers.[186] The authors point out that the President “insisted” that his inherent power entitled him to proceed without involving either of the other two branches of government. [186]. Since 2005, the Court has decided major cases involving detention at Guantanamo Bay, electronic surveillance, enforcement of immigration laws, and limits on the federal bureaucracy. “These issues are not for the faint of heart: each stands at the center of a political firestorm.” [188] And the Court regularly splits its votes “on both sides of the presidential power equation”, in a pattern that has persisted across the Bush and Obama administrations.

Again, the Court is loudly sounding the bell of uncertainty. The authors again carefully parse through the details. In Hamdi and Rasul, detainee law suits heard just before photos depicting “vile and inhuman abuse of detainees” at the Abu Ghraib prison in Iraq, the Court rebuked the Bush administration. Never before had the Court overruled both Congress and the President in wartime. [195]

In the 2002 State of the Union Address, President Bush mentioned how proud he was of the seizure of Lakhdar Boumediene, who was being held, and tortured, in Guantanamo. He spent the next seven years of his life as a prisoner without a trial. Boumediene was a director of a humanitarian aid office in Bosnia and was suspected, but not charged or tried, on suspicion of plotting to blow up the U.S. embassy in Sarajevo. Boumedienne claimed he was innocent, and somehow found a lawyer to file a writ of habeas corpus which made its way to the Supreme Court. Writing for a bare majority of five, Justice Kennedy composed a magnum opus on fundamental Constitutional principles. He fiercely objected to the “indefinite detention” of the prisoner, and the fact that the Administration had created a “new separation of powers” in which the judicial department was no longer involved. [197] Scalia furiously dissented, claiming that courts are not “competent” to second-guess the judgment of Congress and the President on the detention of prisoners. “The Nation will live to regret what the Court has done today”. Chief Justice Roberts signed Scalia’s dissent and added his own, noting that the majority rejected “a review system designed by the people’s representatives” only to replace it with “a set of shapeless procedures to be defined by federal courts at some future date”.

Boumedienne was released on May 15, 2009. Habeas corpus was now a “new law”, but the Supremes have refused to hear any other appeals on Guantanamo detentions. [200] The authors make the claim that this chaos over “fundamental” rights and procedures inexplicably redeems the burnished image of America “in the eyes of the global community”, and somehow a balance will be struck. But the chaotic legacy of the detention cases --Hamdi, Rasul, Hamdan, and Boumediene, all 5/4 cases with heated dissents – will be lasting and damaging.

The authors then turn to the cases challenging the vast electronic surveillance programs set up by the Bush Administration. After 9/11, the federal government amended the 1978 Foreign Intelligence Surveillance Act (FISA), and in 2005 the public discovered that the Bush administration had carried out “a massive, secret program of warrantless wiretapping”. [204]
But in the Clapper case, the Court split along ideological lines, and the majority Opinion written by Justice Alito found that journalists, lawyers and human rights researchers failed to show they had “standing” to complain of being targets of surveillance. Alito “devised a Catch-22" requiring the plaintiffs to proved they were being spied on under a law whose operation was a tightly-guarded secret. [206] With hundreds of new suits being filed in light of the recent NSA disclosures and the leaks by former NSA contractor, Edward Snowden, “the profoundly difficult questions deferred in Clapper” will soon have to be faced.

The authors note that by the end of the term in 2012, Scalia wrote ten dissents, tied with Breyer. The “conservatives” lost on immigration, Vth amendment, right to counsel, and mandatory prison term cases. In his dissent in a case striking down Arizona immigration law, Justice Scalia “assaulted an executive order that bore no direct legal relationship to the case before the Court”. [208] The Justice attacked what he announced was President Obama’s power not to enforce laws to their fullest extent. His administration has limited enforcement of anti-drug laws, avoided seeking mandatory minimums for nonviolent drug offenders, delayed key provisions of the ACA, and chose not to deport undocumented immigrants below the age of sixteen. The authors concede that President Obama has been “unusually explicit” [210] and transparent about his intentions, which has apparently raised Justice Scalia’s ire.

The authors carefully expose the rift between Roberts and Breyer in the Free Enterprise Fund v PCAOB case, which involved presidential control of appointments of officers in agencies. Chief Justice Roberts himself had pushed a board view of executive authority while working in the Reagan administration. But then the authors note, repeatedly but without examples, that Roberts practiced law in Washington, where he had “developed a reputation as a skilled advocate for reduced government regulation”. [215] Ironically, in a 2013 dissent, Roberts “pushed for a rule that would give the Judiciary a lot more power to review and reverse agency action”. Still, the PCAOB case provides little more the “symbolic” guidance–the Court appears to have enhanced presidential power, but only gave more to the SEC by taking some away from the PCAOB. In the language of a former Solicitor General, Paul Clement, it is a “nothing burger that does not provide any meaningful relief even to the parties that challenged the law”. [217]

Breyer’s dissent attempts to conclude the PCAOB case with a pragmatic approach to the separation of powers, and warns against the Chief’s determination to focus on structural formalities in the separation of powers. “In my view the Court’s decision is wrong–very wrong...It will create an obstacle, indeed pose a serious threat, to the proper functioning of that workable Government that the Constitution seeks to create.” [218]

The authors lay out the facts, but gently leave unsaid the conclusion: There is a divisive faction on the Court actively and aggressively pursuing obstacles so as to create Governmental dysfunction.

7. Privacy: What have you Got to Hide?

In this chapter on privacy, the authors relate a number of anecdotes about the Justices in their personal lives. While the image of “nine scorpions in a bottle” is its theme, it also points out the wonderful irony that Justice Ginsburg, “soft-spoken and steely” is “famously close with brash and wisecracking Justice Scalia”. [218] In our internet age, the Justices carefully calibrate how much information they willingly reveal to outsiders, or even to each other. They turn to the privacy cases from their own privacy rules meant to protect the reputation and credibility of the Court. [220]

Justice Ginzburg has spoken out publicly against “one of the most activist courts in history”. [221] Justice Scalia has tried and continues to fail to obtain a rebirth of originalist approaches to privacy law; he has been opposed by Alito, who seeks to focus on “evolving societal expectations and the role other branches of government should play in policing the police”. [222] Sotomayer has emerged as the champion of privacy’s importance, joined by Kagan and Kennedy in acknowledging the demands of modernity. None, however, seem to be attached to specific remedies, and we are left with the assurance that the Court is intensely interested in the issues of privacy. Kagan observed in 2013, that privacy issues are “a growth industry for the court”. [222]

The authors draw deeply upon the Brandeis briefs and the famous Katz, Olmstead and Smith cases from the previous era. And of course, can only do so knowing and showing us that “the Roberts Court is in the middle of a foundation-shaking reappraisal of those [fundamental Constitutional] principles”. [228] The Court shows in Jones (comprehensive GPS tracking) and Jardines (drug-sniffing dog) a profound unhappiness with the status quo, without even pretending to provide “direct or workable answers” – unable to draw upon precedence or guidelines they themselves could agree upon. [239]

The chapter provides a comprehensive review of the panoply of privacy cases, without resorting to a dry recitation of pointless “briefs”. The interactions of the Justices in their decisions and dissents enliven the text.

8. Right for Sale: Discounting the Constitution.

The text begins with lawyer jokes: How appropriate to introduce the procedural spectacle of a state-provided right to counsel, with a jeer at counsel. Again, we are treated to the dialectical schisms and color of the Court in utter disarray.

The chapter ends with this curious, and out of the blue, comment: “Although considerable uncertainty remains, this sensitivity [sic, unexplained] looks like [!] it could emerge as a defining feature of the Roberts Court–enabling it more effectively to safeguard liberty and equality from the wide range of threats and offers that can imperil fundamental rights”.

At this point in our reading, we can clearly see that the biggest threat to fundamental rights appears to come from this activist Court. The authors clearly show a dysfunctional court torn by its own “foundation-shaking” Opinions.

9. Making Rights Real: Access to Justice.

The book concludes with a very short Epilogue on “The Court and the Constitution”. Here, the authors attempt to end on a high note: “The Court is engaged in a dialogue not just with itself and its future incarnations but also with the lower courts, the other branches of our federal government, the sovereign states, and the American people.” [320]

Sadly, however, this description flies in the face of the facts which each of the previous nine Chapters have exposed. The detailed examination of the Roberts Court is a testament to isolation, lack of engagement, and crippling dysfunction. The authors are unable to provide a single example of Scalia, Thomas, Alito, or Roberts engaging in a “dialogue”. Four members of the Court are simply not engaged in “dialogue”.

CONCLUSION

In spite of the best intentions of the authors to “help readers better understand their Court” [7], no one who has accompanied them on this analysis can be comforted. In this high hall of Justice, we have only uncertainty. Uncertainty!

The authors are too polite to comment on the impact of this "uncertainty". Not only is uncertainty at the Supreme Court level not comforting, it is a symptom of institutional disease. In the lowest Courts, uncertainty makes Justice unlikely. In what was Constitutionally structured to be our “highest” Court, uncertainty prevents Justice. We have a Court system that no longer serves The People who own it and pay for it. In creating uncertainty, the Roberts Court is creating Injustice on a national scale. ( )

Let me begin by noting that I received an Advanced Reader's Copy of this from the publisher. The following are my own thoughts and rating.

I'm also writing this review as a huge Supreme Court nerd. I count The Brethren: Inside the Supreme Court by Bob Woodward and Scott Armstrong amongst my favourite non-fiction titles. So I enjoyed reading this very much, but I can only speak as someone who already counts the goings-on of the Court as an interest.

Unlike most other books about the U.S. Supreme Court aimed at the general public--which tend to capitalize on personal and ideological strife amongst the members--Uncertain Justice focuses on the important legal decisions made by the Court under Chief Justice John Roberts, on what legal grounds the opinions were developed, and how these decisions affect the arc of certain areas of law overall. The book also seeks to explain whether some common perceptions of the Court are indeed accurate (for example, that it is pro-business, or that they are purposefully rolling back Civil Rights protections).

Uncertain Justice's authors struggle mightily to present a well-rounded, unbiased account of the U.S. Supreme Court's justices and their landmark decisions, and more often than not succeed. I really enjoyed their account of how the legal minds of the justices appear to work, and thought every case covered was outlined in an easy-to-understand way for those not accustomed to the jargon. Most importantly, to me, is that (although it can become slow at times) Tribe and Matz are clearly taken with their subject. I mean, you can totally tell that they are fascinated by the machinations of the Supreme Court; it comes across clearly on every page. If there is one thing that I think is important in non-fiction, it's a passion for what you're writing about. Where there is passion, there creates interest for the reader, and the authors have it in spades. ( )