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An Inside Look at Backstories of Big Decisions in Chief Justice Roberts’ Court

May 9, 2013 at 12:00 AM EST
In her new book, "The Roberts Court," Marcia Coyle of the National Law Journal and regular NewsHour contributor takes a look at the landmark decisions that have reached the Supreme Court during the tenure of Chief Justice John Roberts. She talks to Jeffrey Brown about her observations and interviews with the justices.
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TRANSCRIPT

JEFFREY BROWN: And finally tonight, a news flash: Marcia Coyle wasn’t in the courtroom today, only because there were no Supreme Court arguments or decisions.

But she is with us, because, in her spare time from covering the court on a daily basis for the National Law Journal and, of course, regularly with us, she’s written a book that takes a larger look at the justices and key cases since 2005, the year that John Roberts became chief justice.

It’s called “The Roberts Court: The Struggle for the Constitution.”

And, Marcia, welcome.

MARCIA COYLE, “The Roberts Court: The Struggle for the Constitution”/ National Law Journal: Thanks, Jeff.

JEFFREY BROWN: First, what were you trying to do here that you don’t do normally with us and for the — and in your daily job?

MARCIA COYLE: I saw the book as an opportunity to really explore the court in-depth.

I think I and many journalists today feel that we have fewer opportunities to write in-depth about just about any subject because of the Internet, where we’re writing for our newspapers, we’re writing for the Web, we’re writing for blogs. And a book was an opportunity to really do that and also to just add to what I do on the NewsHour. And that’s try to shed some light, more light on what the court does.

JEFFREY BROWN: Well, when you look at the big picture, the big issue of the last years, one we have talked about and one you focus on here is the conservative shift in the makeup of the court and how that affects many of the decisions here. Right?

MARCIA COYLE: That’s right.

And the court has had a conservative majority for some time. But with the Roberts court in particular, we saw the court become a little more conservative than its predecessor court, mainly because of the addition of Justice Samuel Alito, who replaced Justice Sandra Day O’Connor. She often was more of a moderating force on the court, and he is much more conservative

JEFFREY BROWN: And one of the things you’re looking at — and, again, this comes up in the sort of politicization of the court. We talk about it, is it a more — and it’s because of the times we live in, right, that everything is politicized.

MARCIA COYLE: That’s true.

JEFFREY BROWN: How do the justices see that and how does that play into their work, if at all?

MARCIA COYLE: I did interview a good number of the justices.

And in the book, they — some of them do talk about whether politics enters into their decision-making. And, obviously, they all feel that it does not. But they talk about how they approach cases.

One, they don’t think in terms of a liberal bloc and a conservative bloc. As one justice explained to me, we all do the same thing. We read the lower court opinion. We read the brief. We listen to the arguments. We look at prior decisions and we make our decisions. But, as this justice also said, the results are what the results are.

We shouldn’t be so naive, I think, to believe, when you have five justices appointed by Republican presidents and four by Democratic presidents, that there is going to be ideological empathy with the politics of the president.

JEFFREY BROWN: And the way you have done this is to look at four areas — big areas, right, where very important decisions, cases, I mean, were decided by 5-4.

MARCIA COYLE: That’s right, Jeff.

It’s a story of the Roberts court in general, but, more specifically, it’s the story of four great divides on the court in the areas of race, guns, money in campaigns and elections, and health care. And …

JEFFREY BROWN: All very much with us still, right? Yes.

MARCIA COYLE: Oh, yes. They have — these decisions have shelf lives. We’re going to see more litigation.

And we’re seeing it right now in the current court …

JEFFREY BROWN: Yes. Yes. Right.

MARCIA COYLE: … but also in the struggle within the court and outside of the court for the meaning of the Constitution in those areas.

JEFFREY BROWN: And — and you get to tell the backstory, which is what makes it so sort of intriguing and takes us beyond the daily news, right?

MARCIA COYLE: Yes.

JEFFREY BROWN: I mean, including how a lot of cases just get to the court, what’s going on behind the scenes.

MARCIA COYLE: That was really important to me, because when we talk about cases, we briefly go through the facts, and then we deal with the law.

JEFFREY BROWN: Yes.

MARCIA COYLE: But it’s hard to get to the Supreme Court.

JEFFREY BROWN: Yes.

MARCIA COYLE: And, in the book, you’re going to meet people like a Seattle mother who sued the Seattle School District in the race cases.

And you’re going to meet a political activist who was involved in the Citizens United case. And, at the same time, you’re going to meet some very smart, creative, conservative and libertarian lawyers who have an eye on the court, a more sympathetic court, and push these cases up to the Supreme Court, young lawyers like Alan Gura, who argued and won the Second Amendment gun case.

JEFFREY BROWN: It’s the Roberts court, right, at the center.

MARCIA COYLE: Yes.

JEFFREY BROWN: And you have — and you have — and you have started it with the beginning of Chief Justice Roberts.

How is he involved in these years? What — what role do you think he plays in sort of controlling the shape of and the outcome of the court now?

MARCIA COYLE: I think he’s very committed to trying to reach consensus on the court, because when the court can speak with one voice or nearly one voice, it sends a clear message to the lower courts into how they should apply and interpret the law.

And he’s had some success with that. And one of the things I point out in the book is that even though I’m focusing on 5-4 decisions, more than 50 percent of the court’s decisions are unanimous or by 7-2 or 8-1.

JEFFREY BROWN: That doesn’t get that much attention, right, because we don’t tend to look at those cases.

MARCIA COYLE: Right, not at all.

And by picking the 5-4 decisions that I do focus on, I pick them mainly because we learn, when they divide like that, the most about individual justices. And I try to show the reader that even within the five bloc or the four bloc, there are differences among those justices as to how they approach and interpret the law.

JEFFREY BROWN: And personally, do they seem to — well, we talked about this after the health care decision, for one, which you write about here.

MARCIA COYLE: Yes.

JEFFREY BROWN: Did that leave any strains personally among the justices, or can you tell just in their working life how much they do get along?

MARCIA COYLE: OK.

Well, I did talk to two justices after the health care ruling. And they were very honest that it was a very tense, tough time. In fact, they compared it to the Seattle, Louisville school cases that I discussed that were in 2007. It was that difficult.

But they also were very confident that the emotions and the passions would be eased by the following September. And I have seen no evidence of continued strain among the justices. This is a group of justices that — that, actually, they do like each other, and they work well. It’s a very — it’s a very collegial court. It’s not nine scorpions in the bottle that we know historically.

JEFFREY BROWN: And John Roberts came as a young man. He’s — he could be there for a long time. There are a number of young justices now. This is very much a work in progress, right?

MARCIA COYLE: That …

JEFFREY BROWN: I mean in the long term, but even in the short term. As of next week, we will have some new decisions, yes?

MARCIA COYLE: That’s right.

And that’s another point in the book, that, by historical standards, this is a young court.

JEFFREY BROWN: Yes.

MARCIA COYLE: And also by the age of at least four of the justices.

JEFFREY BROWN: Yes.

MARCIA COYLE: And the changes, the turnover that’s been on the court, in just five years, they had four new justices, that the justices also talk about in book how that affects their own jurisprudence and also their interpersonal relationships.

JEFFREY BROWN: All right, the book is “The Roberts Court: The Struggle for the Constitution.”

Marcia Coyle, as always, thank you.

MARCIA COYLE: Thank you, Jeff.

JEFFREY BROWN: And we will continue this conversation online. Please join us there later. And you can also read excerpts from Marcia’s book and coverage of this session’s major cases — all that on our Supreme Court page.