Saving Nine

CHAPTER ONE

What the Supreme Court Is—and Isn’t

EARLY IN THE SPRING OF 1981, WHEN I WAS TEN YEARS old, I made my way toward the massive front door of the United States Supreme Court for the first time.

My parents, who’d allowed me to take the rare day away from school for the occasion, had briefed me on what to expect during my first visit to the Court. I was expected to sit up straight, remain attentive until the argument session had come to an end, not to fidget, lest I disrupt the proceedings. I’m sure they didn’t mean to scare me, but by the time we got in the car to make the short journey to the Court, I was convinced that I’d be arrested immediately by the Supreme Court police if I so much as sneezed while the Court was in session. Perhaps realizing I’d be more likely to focus on the game if I knew the names of the players, they gave me a small piece of paper showing which justice sat in which seat.

Although we entered the Supreme Court through the garage that day, I found myself wishing we had come in through the west entrance after climbing the 44 marble steps that separate the Court from the ground. Even to a ten-year-old kid, even the idea of walking up those steps conveyed some semblance (however faint at the time) of a deeper meaning. It has since occurred to me, that when climbing those stairs, you find yourself leaving the swamp of Washington (and the often-petty political conflicts that abound there) behind, and entering a higher plane of existence.

Which, of course, we were.

Both inside the Court and out, I saw so many important symbols that I hardly knew where to look. On what seemed like every wall, I saw figures that I thought I recognized from school but couldn’t quite place. On the outside (just above the west entrance), carved in white marble, was a scene with dozens of historical characters all crowded together. Under them, written in clear block letters, were the words “EQUAL JUSTICE UNDER LAW.”

I’m sure I could have spent hours looking at all those statues, friezes, carvings and other artistic depictions of things I knew were significant, even if I couldn’t identify them by name. But we didn’t have time. We were ushered into a small office, just outside the courtroom, where we waited quietly for a few minutes. At the appointed hour, my mother let us know that it would soon be ten o’clock, when oral arguments before the Court were scheduled to begin.

And as my parents had made sure I knew, the Supreme Court always begins on time.

We made the short walk down the hall to the courtroom, walking slowly through the crowd to take our seats near the middle of the room. I again looked around doing my best to process everything I saw. The chamber’s main feature was a massive, simple wooden bench with nine empty leather chairs behind it. There was a lectern in the middle of the room, and two long wooden tables on either side.

Each table, I noticed, had a large quill pen and ink placed in the middle.

Even then, the writing implements seemed strange. I knew that down in the real world—the one we had left when we entered the Supreme Court—people didn’t use feather pens anymore; in fact, I wasn’t sure I had ever even seen one used in real life. But here, in this vaunted chamber, it seemed that they did. The rest of the room, with its old-fashioned depictions of gods and angels, only heightened the impression of being somehow out of time, and maybe even out of this world.

Then, through a small crowd of young men at the front of the room, I saw the familiar face of my father, Rex Lee. He stood at one of those long wooden tables facing the bench, looking over his papers and speaking with some of the lawyers who’d gathered around him. After we had found our seats, he looked at us, waved, and smiled. I could tell that whatever he was about to do, it was something of tremendous importance, both for him and for everyone else in the room.

A few months earlier, shortly after Ronald Reagan defeated Jimmy Carter to become president, my father had been nominated and (following Senate confirmation) appointed by President Reagan as the solicitor general of the United States. As he had explained it to me and my siblings at the dinner table, this meant that he was, effectively, the lawyer for the executive branch of the United States government. Whenever the Reagan administration made an appearance before the Supreme Court, it did so through my father, who would arguing the government’s case, attempting in each instance to persuade the Court that the administration’s position was correct. If it sounded like a big job, he assured us, that’s because it was.

In the early 1980s, the United States was in the midst of a political revolution—one that had been a long time coming. Under the economic policies of President Jimmy Carter, the rate of inflation had remained steadily above 13 percent.¹ Gas prices were soaring, while wages remained stagnant. Even according to liberal politicians like Ted Kennedy, these problems stemmed from “a failure of leadership at the very top.”² In President Reagan, who had promised “a return to spiritual and moral values” on the campaign trail, voters had found hope, something that was sorely needed at the time.³

For years, the American people had watched as the major institutions of this country, particularly the United States Supreme Court, had drifted steadily leftward. Throughout the 1960s and ’70s, the Court had issued landmark rulings such as Roe v. Wade, which, in the view of many prominent legal experts—my father and two dissenting justices of the Supreme Court among them—veered far off course while purporting to the words of the United States Constitution.

On its face, Roe v. Wade had been simple. The Supreme Court had heard the case of a woman from Texas who wanted an abortion but couldn’t get one. At the time, there was a state law in Texas (and many other states) that outlawed abortion except in the most serious of cases. The woman’s lawyers wanted the Supreme Court to declare that the Texas state law—and, by extension, all other state laws outlawing the procedure—violated the Constitution, which it clearly did not. Texas had passed a law outlawing abortion, an issue that does not appear in the Constitution. It was all perfectly legal.

But there had been mounting political pressure from activist groups to make abortion legal everywhere, all at once. Given that this was a power that the Constitution rightfully reserved to the states, they couldn’t get it all done at once. So they began to pressure the Supreme Court to act in spite of the fact that it had no authority to do so.

Sadly, it worked. In January of 1973, the Court ruled (by a margin of 7–2) to strike down nearly all state laws meaningfully restricting abortion. In the majority opinion, written by Associate Justice Harry Blackmun, the Court declared that government action stopping a woman from getting an abortion would amount to a violation of her right to “due process” under the Fourteenth Amendment—effectively inventing a “right” out of thin air. It was an egregious example of the Supreme Court caving to political pressure from outside the courtroom—something that is supposed to be forbidden. In making its decision, a seven-justice majority had also shown a willingness to treat the Constitution as a so-called “living document,” the meaning of which—according to a theory that was gaining traction at the time—should unfold according to “the evolving standards of decency that mark the progress of a maturing society.”⁴

This was an approach that my father, along with many principled legal minds of the era, would spend much of his career trying to fight. During my dad’s time in the Reagan administration, the Justice Department argued its positions according to what the Constitution says, regardless of what they or others wished it said. They also took their positions without considering whatever bitter political fights were going on outside the courtroom.

I don’t remember which of his many cases my father was arguing that morning. I’m not even sure whether he, as a representative of the government, was the petitioner (challenging the lower court’s ruling) or the respondent (supporting the lower court’s ruling). Yet there are certain sights and sounds from that first visit that left an indelible impression on me. To this day, I can recall them with stunning clarity.

I’m not sure I’ll ever forget, for instance, the way the room suddenly went dead silent at precisely ten o’clock, when the Court’s business was set to begin. If my father had leaned over and tapped his quill pen on the table in front of him, I would have been able to hear it from my seat.

I sat, waiting for whatever was about to happen.

Then, no more than a few seconds after ten o’clock, the silence was broken as the marshal of the Court stepped forward. For years, the marshal has led a kind of security force in the building, one that works for the justices themselves rather than any government agency. It is a solemn job that involves standing guard during oral arguments, deciding who can and can’t come into the building, and, occasionally, removing people. That morning, in a clear and booming voice, the marshal spoke the incantation that has begun the Court’s proceedings since the first time it met in the late eighteenth century.

To this day, I can still recite it from memory.

“The honorable Chief Justice and Associate Justices of the Supreme Court,” he said, the sound filling the room, echoing off the white marble and dark wood. At that exact moment, the nine black-robed justices of the Supreme Court, led at that time by Chief Justice Warren Burger, appeared from behind the black velvet curtain in groups of three. The marshal continued the invocation as they made their way to their seats.

“Oyez, Oyez, Oyez!” he said. “All persons having business before the honorable Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this honorable Court.”

From where I was sitting, the whole thing seemed magical. It was almost as if these nine justices had been summoned into being by the sound of marshal’s words, called down to the world of mere mortals from some distant land beyond the curtain.

I was entranced.

For a few minutes, Chief Justice Warren Burger and the others conducted the daily business of the Court. They went over routine motions, most of which involved new lawyers being admitted to the bar. One after another, men and women in suits would approach the bench, state the names of the lawyers whose admission they sought, and then recede. These petitions were all granted, as was (and still is) customary. Then the newly admitted lawyers took their oaths of office, which took about three minutes, and sat back down in a special section off to the side.

After that, the Court wasted no time in getting down to business. The cases were announced, and the petitioners were invited to begin their oral arguments.

It is here, of course, that my memory of that particular morning gets a little foggy—not only because I was ten years old at the time, but because it runs together in my mind with the dozens of other mornings that I spent doing exactly the same thing.

During the years that my father spent as the solicitor general, my family and I attended many of his oral arguments. We watched him argue cases about everything from the right to religious liberty, to the proper role of the federal government in civilian life, to the freedom of speech. We also heard him make the government’s case when it came to matters of minute statutory interpretation, attempting to argue the finer points of a very narrow section of a particular clause of a government regulation. (Cases like these, in truth, make up a vast majority of the Court’s business during a given year, and they are some of the most fascinating, especially when you’ve studied the stories and precedent behind them.)

But my father’s work was not confined to the grand chamber of the Supreme Court. Even when he was in private practice, it never had been. For as long as I had been alive, my father had brought his work home with him, reading briefs and old opinions in his study and nearly every other room of the house. During family dinners, he would discuss the intricacies of constitutional law with me and any of my siblings who expressed even the slightest interest. We would talk about state statutes and lines of argument. He would hold forth for as long as any of us would listen regarding the implications of a particular federal law. Looking back, I wish I could say that I always paid as much attention as I should have. And I wish I could say that I understood everything he explained about his work. I didn’t. But to the extent I did, it was an edifying experience, and instilled in me a love of the law and a reverence for the Constitution that has been with me ever since.

Today, I am a United States Senator for the state of Utah. My brother currently serves as Associate Chief Justice on the Utah Supreme Court, the five-member tribunal that is the court of last resort in my state. I don’t get many chances to visit the U.S. Supreme Court these days, being busy with my own work in the legislative branch, but whenever I do, I am reminded of the awe that I felt on that first morning. During one memorable occasion when my brother and I handled a case together in that Court, that feeling nearly overcame me. And it has not dissipated in the years since. If anything, it has only gotten stronger as I have learned more about the law and the Constitution.

Unfortunately, not everyone feels the same way. Given the heightened partisan rancor of the past few years, this should come as no surprise. In a poll taken in August of 2021, researchers at Marquette University Law School showed that only 60 percent of Americans believed the Supreme Court was doing an adequate job of interpreting the Constitution and coming up with its rulings, down from 66 percent just a year before.⁵ It was the sharpest dip in public opinion since they began asking the question in the mid-twentieth century.

During the confirmation hearing of Amy Coney Barrett a few months later, my colleague on the Judiciary Committee, Senator Sheldon Whitehouse said it was “up to us”—the “us” in question being Democrats—“to figure out how to… restore a court that is demonstrably not the organ of big special interests.”⁶ I found that argument disturbing, in part because it left open the question of just how Democrats intended to “restore” the Court—by adding more justices, perhaps?

Senator Whitehouse called his comments that day “more or less a preview of coming attractions,” and regrettably he was right. In the aftermath of Justice Barrett’s first session on the Supreme Court, the attacks were relentless.

On December 16, 2021, an op-ed in The New York Times declared that the Supreme Court had been “weaponized,” its writer comparing the recent opinions to “a drone strike” and writing that the “path of destruction of settled precedent and long-established norms is breathtaking.”⁷ In previous months, there had been similarly unhinged claims made in public about the Court, many of them linked to the fact that three of its justices had been appointed by President Donald J. Trump, which according to some on the Left, somehow made the Court illegitimate.

Underlying all this negative coverage, though, is the assumption that the Supreme Court is a political body just like Congress and the White House. Some assume that justices who are appointed by Republican presidents are going to behave like Republican elected officials, and that appointees of Democratic presidents will do the same for the other side. But that assumption is wildly inaccurate. In fact, the job of a Supreme Court justice and a United States senator could not be more different. I say that as a United States senator who has spent much of his life following the Supreme Court, has worked at and appeared before the Court, and has even been considered as a potential Supreme Court nominee.

Its chambers are attached neither to the Capitol nor the White House—and with good reason. The Supreme Court’s proceedings are supposed to take place literally and figuratively beyond the realm of politics and policy.

So, before embarking on the rest of this book, I think that it’s important to remind all Americans what the Supreme Court actually is—and, perhaps more importantly, what it is not.

Writing in The Federalist, no. 78, Alexander Hamilton correctly referred to the federal judiciary as the “least dangerous” branch of the federal government’s three branches.⁸ Those words were certainly true at the time, and should always remain true, because the exercise of judicial power is (and should be) uniquely narrow—interpreting laws rather than making them.

As we all learned (or at least should have been taught) in grade school, middle school, and high school—but as many in Washington often seem to forget—we have three branches of government in the United States. They’re often referred to as being “equal” branches, but that isn’t the best way to describe them. They are better referred to as three independent, coordinate branches. Each one exists in its own sphere, possessing its own authority that the others do not. One branch must not attempt to exercise the authority of another branch.

Article I of the Constitution creates, restricts, and assigns authority to the Legislative Branch, providing (in Article I, Section 1, Clause 1) that “[a]ll legislative powers [within the federal government] shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” “Legislative powers” are those required to “legislate,” i.e., make laws. Laws are binding rules that are enforced by the government, although law enforcement is an executive function covered under Article II, which we will address separately in a moment. The point is that Congress, being the branch that makes federal law, is the branch that decides what should be.

By almost any objective standard, that particular authority—the power to decide “what should be,” as far as federal law is concerned—makes Congress the most dangerous branch, by a fairly wide margin. The founders understood that danger, and went out of their way to establish several checks on legislators’ power. They established term limits for senators and members of the representatives to keep them accountable to the people. They required bills to pass both houses of Congress before becoming law and subjected those bills to presidential veto power (which Congress can only override with a massive two-thirds majority). They denied Congress the power to enforce, administer, or interpret the laws it enacts.

Furthermore, federal law itself was limited to a list of “enumerated” powers that the Constitution itself deems necessarily national in scope. This included declaring war, regulating trade or “commerce” between the states and with foreign nations, coining money, and collecting taxes. Finally, in the Bill of Rights, the Founders specifically laid out things Congress may not do (e.g., enact laws restricting free speech, depriving a person of life, liberty, or property without due process of law, or inflicting cruel and unusual punishment), even if such measures would otherwise fall within Congress’s already-confined lawmaking authority.

All of the foregoing suggests that those who wrote, signed, and ratified the Constitution had strong opinions about Congress, and went more than out of their way to limit its power. The Constitution—the entire purpose of which is to restrict the exercise of government power—contains more words directed at Congress than anything else, and far more than those directed at either of the other two branches or to the states. Tellingly, it dedicates 2,268 words to the particulars of what Congress may and may not do. Contemporaneous writings and transcripts make clear that the framers were worried about Congress exerting an outsized influence on the American people—far more than they worried about any other feature of government.

Some may find this preoccupation curious, given that at the time the Constitution was written, our country was still new, and operating with a Congress that had proven relatively harmless—partly because little time had elapsed since the Revolution, but mostly because Congress had been largely powerless under the Articles of Confederation. In fact, the relative powerlessness of Congress under the Articles of Confederation (along with the corresponding need for a national legislative body capable of achieving a degree of national uniformity among the newly sovereign American states) is precisely what led to the Constitutional Convention of 1787. They came together for the express purpose of expanding the reach of Congress. But they knew that this was dangerous business for one simple reason: the lawmaking power, by its very nature, makes Congress the “most dangerous” of the three branches. So, they spent the most time making sure that we in Congress never accumulated too much power.

In the executive branch, the president of the United States is tasked with implementing and enforcing laws enacted by Congress. In Article II, the Constitution contains about a thousand words laying out the responsibilities of the executive branch, specifying how the president should be elected and when, how the states should choose their electors and the qualifications that a person must have to serve as president.

The legislative and executive branches are political by design. They are made up of elected officials, and the laws they are charged with making (in the case of the legislative branch) and enforcing (in the case of the executive branch) can change according to the will of the people. When the American people want to do something that requires legislation—prohibiting one thing or mandating another—they can do so by petitioning their elected representatives to enact a law. There are, however, some things that the law cannot do. There are certain rights upon which Congress and the executive branch cannot infringe, even if the majority of people in the United States want them to—even if the majority of people are begging them to. The founders knew that this might happen, which is why they wrote our Constitution, and soon thereafter, our Bill of Rights. They intended to take our most important freedoms—of speech, the press, and the rest of the ones everyone knows—and enshrine them in a document that was, in effect, safe from future “democratic” mobs that might want to abolish them in later years. The two political branches, both of which are operated by individuals who have sworn an oath to adhere to the Constitution, are expected to refrain from any action prohibited by that document. Constitutional government exists only to the extent that most of those elected to the presidency, the Senate, and the House of Representatives are willing to check their own power, using the Constitution as their guide.

But what happens when they don’t adhere to constitutional norms of their own volition? In other words, what happens when Congress enacts and the president enforces a law contrary to the restrictions imposed by the Constitution? More to the point, what happens when people of good conscience and sound mind disagree as to the meaning of a particular law or constitutional provision? That’s where the other branch of the federal government—the Supreme Court “and such inferior courts as Congress may by law establish”—comes into play. It is the job of the judicial branch to resolve such disputes, and resolve “cases or controversies” brought before them. Administered by men and women who, once nominated by the president and confirmed by the Senate, serve “during good behavior”—i.e., for life, as long as they don’t do anything to trigger their impeachment and removal—the judicial branch was designed to be essentially immune to popular opinion. Within the judicial branch, insulation from accountability was an essential design feature, not a bug.

In this respect, the judicial branch is fundamentally undemocratic. Sometimes, it’s even anti-democratic. According to its mandate in Article III of the Constitution, an article that is substantially shorter than both articles that precede it, the judiciary is responsible for resolving specific disputes as to the meaning and application of federal law (whether statutory or constitutional). It has no power to write laws. Nor is it authorized to enforce laws (in fact, it must rely on the Executive Branch to enforce its rulings). Its authority extends only to adjudicating real disputes that arise between real people—not just people who care about the meaning of the law for one reason or another, but people who care because of the way the law directly affects them in particular.

Unlike the other branches, the judiciary does not take an affirmative, proactive role in American public life. It doesn’t issue “advisory opinions” or otherwise express its views in the abstract, and renders no advice to lawmakers as to the legal, constitutional, or policy implications of any legislative proposal. Nor does it weigh in on bills as they move through the legislative process.

In fact, even after a bill becomes a law, the judicial branch still doesn’t get involved—not unless or until a dispute arises between two or more parties. Even when such disputes arise, the courts don’t undertake an open-ended, comprehensive review of each law at issue (offering opinions as to the precise meaning, scope, and constitutionality of each provision of that law). Instead, they address the issues properly presented to them by the parties, including both (a) questions of law (that is, the plaintiff argues that a particular law means “x,” while the defendant insists that it means “y”) and (b) questions of fact (e.g., the plaintiff presents evidence showing that the defendant drove through a red light at a particular intersection at 12:31 p.m. on the date in question, while the defendant argues that the plaintiff’s evidence on this point isn’t credible and is contradicted by other evidence). Questions of law are decided by judges themselves. Questions of fact (insofar as they can’t be resolved prior to trial) are decided at trial by the “finder of fact,” which is either a judge or a jury (convened by and operating under the direction of a judge), depending on the nature of the case and the preference of the parties. The Constitution protects the right to a jury trial in most civil cases (under the Seventh Amendment),ⁱ and in nearly all criminal cases (under the Sixth Amendment),ⁱⁱ although there are exceptions. That said, even where there is a right to a jury trial, the parties may consent to a “bench trial,” in which questions of fact are resolved by a judge rather than a jury.