Contents
Preface xi
Benched: The Supreme Court and the Struggle for Judicial Independence Jill Lepore, The New Yorker, June 18, 2012 1 1 The Court and Its Workings Principles and Practice 13
The Constitution of the United States: Article III 17 U.S. National Archives and Records Administration
The Federalist, No. 78: The Judiciary Department 19 Publius [Alexander Hamilton], Independent Journal, June 14, 1788
May I Suggest a Few Revisions? 24 Forrest Wickman, Slate, June 26, 2012
Supreme Court of the United States: Rule 10 Considerations Governing Review of Writ of Certiorari 26 Supreme Court of the United States, adopted April 19, 2013
Why Did the Court Grant Cert in King v. Burwell? 27 Jonathan Adler, The Volokh Conspiracy, The Washington Post, November 7, 2014
Three Recently Accepted Cases Shed Light on the Supreme Court’s Process for Granting Review 29 Vikram David Amar, Verdict, Justia, June 6, 2014
Why Did Supreme Court Punt on Same-Sex Cases? 34 Tony Mauro, USA Today, October 8, 2014
Who’s Getting the Work at the Supreme Court? 36 Tony Mauro, The American Lawyer, October 24, 2014
A Supreme Court without Stare Decisis 38 Orin Kerr, The Volokh Conspiracy, August 17, 2009
v vi Contents
Supreme Court of the United States: Information about Opinions 40 Supreme Court of the United States, undated
Writing Their Wrongs: Supreme Court Justices Regularly Seek to Change the Errors of Their Ways 44 Mark Walsh, ABA Journal, August 1, 2014
The Justices, Their Papers, and the Claims of History 48 Christopher Schmidt, ISCOTUS, December 15, 2014
2 The Justices Traditional Reserve, Contemporary Demystification 53
John Roberts, Chief Conservative Strategist 57 Paul M. Barrett, Bloomberg Businessweek, April 10, 2014
The Devastating, Sneaky Genius of John Roberts’ Opinions 60 Emily Bazelon, Slate, April 2, 2014
How Not to Misunderstand Scalia 63 Cass R. Sunstein, Bloomberg.com, July 1, 2013
What Is Clarence Thomas Thinking? 65 Garrett Epps, The Atlantic, February 26, 2014
Ruth Bader Ginsburg’s Retirement Dissent 68 Amy Davidson, The New Yorker, September 24, 2014
Active Liberty Lives! 71 Adam Winkler, Slate, July 8, 2014
How Sonia Sotomayor Became the Supreme Court’s Preeminent Defender of Civil Liberties 74 Scott Lemieux, The Week, December 26, 2014
Court Sense 76 Colleen Walsh, Harvard Gazette, September 4, 2014 Contents vii
Breyer and Scalia Debate the Role of Established Practice in Constitutional Interpretation 79 Christopher Schmidt, ISCOTUS, June 26, 2014
Time to Fix—or Scrap—the Confirmation Hearings 81 Andrew Cohen, Vanity Fair, July 16, 2009
Yale, Harvard, Yale, Harvard, Yale, Harvard, Harvard, Harvard, Columbia: The Thing That Scares Me Most about the Supreme Court 83 Dahlia Lithwick, The New Republic, November 13, 2014
How Judges Think: A Conversation with Judge Richard Posner 87 Jonathan Masur, The Record Online, Spring 2008
3 Politics and the Court The Supreme Court and the Political Landscape 93
Can the Supreme Court Be Rescued from Politics? 98 Scott Lemieux, The Week, May 15, 2014
Politicizing the Supreme Court 101 Eric Hamilton, The Stanford Law Review, August 30, 2012
By Any Means Necessary 107 Linda Greenhouse, The New York Times, August 20, 2014
Americans Divided on How the Supreme Court Should Interpret the Constitution 111 Jocelyn Kiley, Pew Research Center, July 31, 2014
Fault Lines Re-emerge in Supreme Court at End of Term 114 Joan Biskupic, Reuters, July 1, 2014
Rare Unanimity in Supreme Court Term, with Plenty of Fireworks 116 Nina Totenberg, National Public Radio, July 7, 2014
Split Definitive 120 Lawrence Baum and Neal Devins, Slate, November 11, 2011 viii Contents
4 Major Decisions The Supreme Court’s Major Decisions in Historical Perspective 127
Precedent and Prologue 131 Jeffrey Toobin, The New Yorker, December 6, 2010
2014 Election ConfirmsCitizens United Decision Based on Fundamentally Flawed Premises 134 Fred Wertheimer, The Huffington Post, November 6, 2014
Obama Wins the Battle, Roberts Wins the War 137 Tom Scocca, Slate, June 28, 2012
Supreme Court’s Silence on Marriage Rights Speaks Volumes 139 Marcia Coyle, The National Law Journal, October 6, 2014
Why the Supreme Court May Finally Protect Your Privacy in the Cloud 142 Andy Greenberg, Wired, June 26, 2014
Dawn Patrol 145 Richard L. Hasen, Slate, October 19, 2014
Supreme Court Deals Major Blow to Patent Trolls 147 Klint Finley, Wired, June 19, 2014
The Trap in the Supreme Court’s “Narrow” Decisions 149 Jeffrey Toobin, The New Yorker, June 30, 2014
Without Actually Issuing Opinions, SCOTUS Has Already Decided a Lot 151 Erwin Chemerinsky, ABA Journal, November 4, 2014
How the Justices Move the Law 154 Richard L. Hasen, SCOTUSblog, October 24, 2012 Contents ix
5 Public Perceptions of the Court Judging the Bench 159
Why the Supreme Court Needs Term Limits 163 Norm Ornstein, The Atlantic, May 22, 2014
Cameras and the Courtroom Dynamic 166 Nancy Marder, JURIST, February 24, 2012
At Supreme Court, Secretiveness Attracts Snoops 169 Richard Wolf, USA Today, November 12, 2014
A Modest Proposal 171 Christopher Schmidt, ISCOTUS, November 12, 2014
The Supreme Court’s Baffling Tech Illiteracy Is Becoming a Problem 173 Selina MacLaren, Salon, June 28, 2014
The Supreme Court: The Last Bastion of American Leadership? 176 Matt K. Lewis, The Week, July 8, 2014
The Supreme Court’s Ultimate Test 178 Laurence H. Tribe, Los Angeles Times, June 24, 2014
The Supreme Court Steps: An Architectural Dissent 180 Paul Goldberger, The New Yorker, May 5, 2010
Bibliography 182
Websites 186
Index 191