Book Notes
-
Introduction
1. Invisible boundary: From Alabama, an epic challenge to voting rights by Joan Biskupic, Reuters, June 4, 2012
https://www.reuters.com/article/idUSBRE85304N/2. Growing city’s downtown: Supreme Court to weigh divisive voting rights case, by Bill Mears, CNN, Feb. 22, 2013
https://www.cnn.com/2013/02/22/politics/court-voting-rights/index.html3. Severed from a Black church: The Supreme Court vs Black voters in Alabama, by Lou Dubose, Washington Spectator, Feb. 1, 2013
https://washingtonspectator.org/the-supreme-court-vs-black-voters-in-alabama/4. 71 percent Black to nearly 70 percent white: Ernest Montgomery, testimony before Congress
https://www.congress.gov/116/meeting/house/109456/witnesses/HHRG-116-HA08-Wstate-MontgomeryE-20190513.pdf5. It traded neighborhoods: Supreme Court ruling worries Blacks in Shelby County, Alabama by Adam Howard, Associated Press, June 26, 2013
https://thegrio.com/2013/06/26/supreme-court-ruling-worries-blacks-in-shelby-county-alabama/6. Smothered by a Supreme Court: Highly recommended books on this era include: The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction by Charles Lane (Holt, 2008); The Colfax Massacre: The Untold Story of Black Power, White Terror and the Death of Reconstruction by LeeAnna Keith, Oxford University Press, 2008; Reconstruction America's Unfinished Revolution, 1863-1877 by Eric Foner (Harper Perennial Modern Classics, 2009) The Rise and Fall of the Second American Republic by Manisha Sinha, Liveright 2024, and From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality by Michael J. Klarman, Oxford University Press, 2006
7. “My job to call balls and strikes”: John Roberts confirmation hearings transcripts
https://www.judiciary.senate.gov/imo/media/doc/GPO-CHRG-ROBERTS.pdfC-SPAN video
https://www.c-span.org/video/?188437-1/roberts-confirmation-hearing-day-18. Defined his image: Charles Fried, Balls and Strikes, 61 Emory L. J. 641 (2012).
https://scholarlycommons.law.emory.edu/elj/vol61/iss4/19. Team of attorneys: Supreme Court is about to have 3 Bush v. Gore alumni sitting on the bench, by Joan Biskupic, CNN, Oct. 17, 2020
https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.htmlNominee Gave Quiet Advice on Recount by Abby Goonough, New York Times, July 21, 2005
https://www.nytimes.com/2005/07/21/politics/nominee-gave-quiet-advice-on-recount.html10. Much more radical approach on the bench: Eric J. Segall, Chief Justice John Roberts: Institutionalist or Hubris-in-Chief?, 78 Wash. & Lee L. Rev. Online 107 (2021), https://scholarlycommons.law.wlu.edu/wlulr-online/vol78/iss1/4
11. Modestly conservative institutionalist: Recommended analysis of Roberts and the press:
John Roberts did this to himself by Emmett Witkovsky-Eldred, Balls and Strikes, Nov. 16, 2021. https://ballsandstrikes.org/scotus/john-roberts-did-this-to-himself/
Legal journalism is broken by Jay Willis, Balls and Strikes, Sept. 15, 2021
https://ballsandstrikes.org/legal-culture/legal-journalism-is-broken/12. A 1971 private memo: Lewis Powell’s memo to the Chamber of Commerce:
https://scholarlycommons.law.wlu.edu/powellmemo/13. A focused, long-term effort: Why Conservatives Want Kavanaugh at All Costs by Matt Ford, New Republic, Sept. 27, 2018
https://newrepublic.com/article/151411/conservatives-want-kavanaugh-costs14. Undo the Warren Court: Conservatives’ Coming War on the Warren Court by Matt Ford, New Republic, March 4, 2019
https://newrepublic.com/article/153208/conservatives-coming-war-warren-court15. Judge-minting apparatus: The incredible influence of the Federalist Society, explained, Vox, by Dylan Matthews and Byrd Pinkerton, June 3, 2019
https://www.vox.com/future-perfect/2019/6/3/18632438/federalist-society-leonard-leo-brett-kavanaugh16. Black-tie dinners: Conquerors of the Courts by David Montgomery, Washington Post, Jan. 2, 2019
https://www.washingtonpost.com/news/magazine/wp/2019/01/02/feature/conquerors-of-the-courts/17. Trump volunteered to choose: Trump unveils his potential Supreme Court nominees by Jeremy Diamond, CNN, May 18, 2016
https://www.cnn.com/2016/05/18/politics/donald-trump-supreme-court-nominees/index.html18. Approved conservatives: Federalist Court by Lawrence Baum and Neal Devins, Jan. 13, 2017
https://slate.com/news-and-politics/2017/01/how-the-federalist-society-became-the-de-facto-selector-of-republican-supreme-court-justices.html19. Joked McGahn: Conquerors of the Courts by David Montgomery, Washington Post, Jan. 2, 2019
https://www.washingtonpost.com/news/magazine/wp/2019/01/02/feature/conquerors-of-the-courts/20. Hope you are proud: Conquerors of the Courts by David Montgomery, Washington Post, Jan. 2, 2019
https://www.washingtonpost.com/news/magazine/wp/2019/01/02/feature/conquerors-of-the-courts/21. Throwing away your umbrella: Ginsberg’s dissent in Shelby County v. Holder, 570 U.S. 529 (2013)
https://supreme.justia.com/cases/federal/us/570/529/#tab-opinion-1970751 -
Chapter one
1. Chapter one: The brilliant work of Kim Phillips Fein in Invisible Hands and Calvin Terbeek’s groundbreaking paper “Clocks Must Always Be Turned Back” was indispensable to this chapter
2. Black voter registration skyrocketed: Statistics at https://jointcenter.org/wp-content/uploads/2019/11/VRA-report-3.5.15-1130-amupdated.pdf and https://www.usccr.gov/files/pubs/msdelta/ch3.htm
3. Some 250,000 new Black voters: https://www.archives.gov/milestone-documents/voting-rights-act
4. Powell’s call to arms: Powell, Lewis F. Jr., "The Memo" (1971). Powell Memorandum: Attack On American Free Enterprise System. https://scholarlycommons.law.wlu.edu/powellmemo/1
5. A poster of the burning bank: Can be seen at https://justseeds.org/product/bank-of-amerika/
6. Kim Phillips Fein book: Invisible Hands: The Businessman’s Crusade Against the New Deal, Norton, 2010
7. “It’s a damn serious problem because of the frequency”: Bank of America Big Coast Target by Steven Roberts, New York Times, May 16, 1971
https://www.nytimes.com/1971/05/16/archives/bank-of-america-big-coast-target-for-bombers-and-critics-its-a.html8. “We are facing a real honest-to-God disenchantment”: LUNDBORG, LOUIS B. “THE LESSONS OF ISLA VISTA.” The Business Lawyer, vol. 26, no. 3, 1971, pp. 943–52. JSTOR, http://www.jstor.org/stable/40685243
9. YSW opinion poll in Stop Blaming Milton Friedman! by Brian R. Cheffins, Washington University Law Review, Vol. 98 issue 6
https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=6540&context=law_lawreview10. “Oozes instead of flows”: Time magazine, August 1, 1969
11. “Like an old-fashioned drugstore on fire”: Time magazine,” Here’s Why the Environmental Protection Agency Was Created” by Lily Rothman, March 22, 2017
12. “Shall we make our peace with nature”: Richard Nixon’s 1970 State of the Union address can be found at https://www.presidency.ucsb.edu/documents/annual-message-the-congress-the-state-the-union-2
13. “Photographed with a lit cigarette” in “How Statistics Doomed Washington State’s Death Penalty” by Garrett Epps, The Atlantic, October 14, 2018 https://www.theatlantic.com/ideas/archive/2018/10/how-statistics-doomed-washington-states-death-penalty/572968/
14. Blue Ribbon Defense Panel: https://history.defense.gov/Multimedia/Biographies/Article-View/Article/571291/melvin-r-laird/
15. “League of Carthage”: Dark Money by Jane Mayer, Doubleday, 2016 p. 72.
16. Powell’s “Political Warfare” memo and related correspondence is included in his papers at Washington and Lee, Lewis F. Powell Jr. Papers, Box 117/Folder 31 and online at https://scholarlycommons.law.wlu.edu/powellcorrespondence/4/
17. Powell’s Blue Mountain speech, “The Attack on American Institutions,” is included in his Washington and Lee papers. Lewis F. Powell, Jr., The Attack on American Institutions, Address at the Southern Industrial Relations Conference (Jul. 15, 1970). https://scholarlycommons.law.wlu.edu/powellspeeches/8/
18. Powell’s notes from the White House on both the “Political Warfare” and “American Institutions” addresses in his papers on “Political Warfare” and related correspondence, https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1003&context=powellcorrespondence
19. Powell’s correspondence with Sydnor and the magazine stories they clipped and shared are included in his papers Powell, Lewis F. Jr., "Background" (1971). Powell Memorandum: Attack On American Free Enterprise System. 2. https://scholarlycommons.law.wlu.edu/powellmemo/2
Phillips Fein also discusses in Invisible Hands
20. Powell obits: Lewis Powell, Crucial Centrist Jurist, Dies at 90, New York Times, by Linda Greenhouse, August 26, 1998. https://www.nytimes.com/1998/08/26/us/lewis-powell-crucial-centrist-justice-dies-at-90.html,
Los Angeles Times
https://www.latimes.com/archives/la-xpm-1998-aug-26-mn-16693-story.html
Time magazine
https://content.time.com/time/subscriber/article/0,33009,970602,00.html21. Powell Memorandum at Powell, Lewis F. Jr., "The Memo" (1971). Powell Memorandum: Attack On American Free Enterprise System.” https://scholarlycommons.law.wlu.edu/powellmemo/1
22. Powell’s memo is also brilliantly discussed in Phillips-Fein’s Invisible Hands, p. 156-165; Mayer’s Dark Money, p. 72-87; and Corporations Are Not People by Jeffrey Clements, Berrett-Koehler Publishers, 2014.
23. Bork’s article: Bork, Robert H. (1971) "Neutral Principles and Some First Amendment Problems," Indiana Law Journal: Vol. 47: Iss. 1, Article 1. Available at: https://www.repository.law.indiana.edu/ilj/vol47/iss1/1
24. “Twist or bend”: Nixon’s address to the nation on Rehnquist and Powell nominations available at https://www.presidency.ucsb.edu/documents/address-the-nation-announcing-intention-nominate-lewis-f-powell-jr-and-william-h-rehnquist
25. Two terrific books on originalism that I drew on are Originalism as Faith by Eric J. Segall, Cambridge University Press, 2018 and Worse Than Nothing: The Dangerous Fallacy of Originalism by Erwin Chemerinsky, Yale University Press, 2022
26. “Laid the intellectual groundwork” in Judge Bork, RIP by Steven Calabresi, National Review, December 20, 2012, https://www.nationalreview.com/corner/judge-bork-rip-steven-g-calabresi/ and in the Harvard Law Review https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2013/05/36_3_1235_Calabresi.pdf
-
27. Discussion of Powell’s life informed by Powell’s terrific biographer, John C. Jeffries, in Justice Lewis F. Powell Jr.: A Biography by John C. Jeffries Jr., MacMillan, 1994, particularly the chapters on National Citizen and Appointment. Also indebted to a thoughtful piece by Adreanne Stephenson in the Notre Dame Journal of Law, Ethics & Public Policy, “Two Sides of the Same Coin: Justice Powell and Justice Marshall's Perspectives on Education and the Law,” August 14, 2014 https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1001&context=ndjlepp_online
28. “Never met a Black as an equal” in Justice Lewis F. Powell Jr.: A Biography by John C. Jeffries Jr., MacMillan, 1994, p. 139
29. “Never occurred to me to question,” Jeffries, p. 139.
30. “The school decisions were wrongly decided,” Jeffries, 140
31. Just two of the city’s 23,000 Black students: Linda Greenhouse, New York Times, August 26, 1998 https://www.nytimes.com/1998/08/26/us/lewis-powell-crucial-centrist-justice-dies-at-90.html
32. Powell on Martin Luther King Jr. All of Powell’s speeches from the 1960s can be found via Washington and Lee. https://scholarlycommons.law.wlu.edu/powellspeeches/. His thoughts on King can be seen most specifically in Civic Disobedience v The Rule of Law, Lewis F. Powell Papers, box 116/folder 16 and a piece in the Washington and Lee Law Review, Lewis F. Powell, Jr., A Lawyer Looks at Civil Disobedience, 23 WASH. & LEE L. REV. 205 (1966). https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=3612&context=wlulr
A terrific scholarly paper on Powell in the 1960s is Anders Walker’s A Lawyer Looks at Civil Disobedience: How Lewis F. Powell, Jr. Reframed the Civil Rights Revolution, 2014, St. Louis University School of Law. https://scholarship.law.slu.edu/cgi/viewcontent.cgi?article=1168&context=faculty
33. “Shown any deep feelings for little people” in “Senate Confirms Powell by 89 to 1 For Black’s Seat,” New York Times, December 7, 1971
https://timesmachine.nytimes.com/timesmachine/1971/12/07/90702671.html?pageNumber=134. Discussion of race and originalism drawn and informed from Calvin Terbeek’s “Clocks Must Always Be Turned Back”: Brown v. Board of Education and the Racial Origins of Constitutional Originalism. American Political Science Review. 2021;115(3):821-834. doi:10.1017/S0003055421000095
https://www.cambridge.org/core/journals/american-political-science-review/article/abs/clocks-must-always-be-turned-back-brown-v-board-of-education-and-the-racial-origins-of-constitutional-originalism/AEA2474F0FC8EA1C0C77F7481DC670D635. The role of key movement conservatives: Terbeek, ibid https://www.cambridge.org/core/journals/american-political-science-review/article/abs/clocks-must-always-be-turned-back-brown-v-board-of-education-and-the-racial-origins-of-constitutional-originalism/AEA2474F0FC8EA1C0C77F7481DC670D6
36. “Think tanks to develop proposals, media outlets to disseminate them”: The Democracy Fix by Caroline Frederickson, The New Press, 2019, pp 9-13
37. Mark Schmitt suggests the influence of the Powell Memo has been overblown in a counter-intuitive piece in the Washington Monthly, “The Myth of the Powell Memo,” September/October 2016, but it’s essentially a way to frame a book review on the history of conservative think tanks. What matters is less the direct line between the memo and the specific recommendations, but the conversations it started and the actions it led to. As Mayer writes in Dark Money, the memo “electrified the Right, prompting a new breed of wealthy ultraconservatives to weaponize their philanthropic giving in order to fight a multi-front war of influence over American political thought.” (p. 76)
38. Mayer’s Dark Money, Phillips-Fein’s Invisible Hands and Frederickson’s Democracy Fix are terrific on the after-effects of the Powell Memo, as is Michael Perelman’s The Confiscation of American Property (Palgrave Macmillan, 2007). The grandaddy on its initial impact is Justice For Sale, a 1993 report by the Alliance for Justice. https://www.greenpeace.org/usa/wp-content/uploads/legacy/Global/usa/planet3/PDFs/Justice%20for%20Sale%201993.pdf.
Nancy Maclean and Lisa Graves address its legacy in Time to Fight, Slate, August 20, 2021. https://slate.com/news-and-politics/2021/08/lewis-powell-memo-chamber-commerce.html
39. “We should cease financing our own destruction”: Koch’s speech can be found at https://kochdocs.org/2019/06/07/charles-koch-anti-capitalism-big-business/
40. “Stirred” into action: Coors quoted in Mayer’s Dark Money, pp 77-78 and Phillips-Fein’s Invisible Hands, 170-71
41. Olin letter to Baroody: Phillips-Fein’s Invisible Hands, p. 162
42. “Bright young conservative”: Walter Olson tells the story of Scalia’s days editing Regulation on the Cato Institute’s web site: https://www.cato.org/blog/justice-scalia-regulation-magazine-economic-liberties-debate
43. Business Roundtable numbers and lobbyist details in Jacob Hacker and Paul Pierson, Winner-Take-All Politics, Simon & Schuster, 2010 and Hedrick Smith, Who Stole the American Dream, Random House, 2012. Greenpeace followed the Alliance for Justice report with additional numbers in Powell Memo Blueprint: Impact on Political Action, here: https://www.greenpeace.org/usa/democracy/powell-memo-blueprint-impact-on-political-action/
44. Powell and creation of conservative public interest law firms in Clements, Corporations Are Not People, Berrett-Koehler Publishers, 2012 as well as The Rise of the Conservative Legal Movement by Steven M. Teles, Princeton University Press, 2008,
45. Public Interest Legal Foundation and Stop The Steal: https://publicinterestlegal.org/about/board-of-directors/
46. Federalist Society’s launch: https://www.philanthropyroundtable.org/almanac/birth-of-the-federalist-society/
47. Impact and goals of Olin Foundation and other conservative foundations, as well as list of Olin Fellows that includes Amy Coney Barrett in The Rise of the Conservative Legal Movement by Steven M. Teles, Princeton University Press, 2008, pp 171-76.
-
Chapter Two
1. Chapter two: I’m deeply appreciative to Michael Horowitz for speaking with me, and to the brilliant scholar Ann Southworth for providing me with a full copy of the Horowitz Report. Steven Teles’s indispensable The Rise of the Conservative Legal Movement was essential to this chapter, as was Jane Mayer’s tour de force Dark Money.
2. Turning his memo into legal precedent: Clements’ Corporations Are Not People, Adam Cohen’s Supreme Inequality, Penguin Press, 2020 and Sheldon Whitehouse’s The Scheme, New Press 2022, are all terrific on Bellotti. Whitehouse addressed the issue in a U.S. Senate floor speech here: https://www.whitehouse.senate.gov/news/speeches/the-scheme-2-powell-on-the-court
3. Bellotti decision: First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978), https://supreme.justia.com/cases/federal/us/435/765/
4. Citizens United decision: Citizens United v. FEC, 558 U.S. 310 (2010) https://supreme.justia.com/cases/federal/us/558/310/
5. Conservative public interest law firms: The history of the conservative public interest firms is told in Bringing Justice to the People by Lee Edwards, Heritage, 2004 and Teles, Rise of the Conservative Legal Movement. The tens of millions number is probably on low side; in Moving A Public Policy Agenda, Sally Covington details more than $10 million from foundations between 1994 and 1996 alone.
https://ncrp.org/wp-content/uploads/2016/11/Moving-a-Public-Policy-Agenda.pdf6. Almost unknown: The influence of the Horowitz Report, titled The Public Interest Law Movement: An Analysis with Special Reference to the Role and Practice of Conservative Public Interest Law Firms (1980) is first cited by Oliver A. Houck in “With Charity For All,” in the Yale Law Journal, Number 8, July 1984. The article is available online here and highly recommended as the Report is otherwise extraordinarily difficult to find. Even Horowitz no longer has a copy, and Houck told me he has lost track of his original. “This has been a difficult report to write; difficult because it is often critical of people I very much like and of a movement for whose success I so much hope,” Horowitz writes at the beginning. Houck calls it “a tour-de-force of public interest law and the new business PILFs from a strongly supportive and frankly acknowledged conservative view.” Houck concludes that, “The Horowitz Report is the analysis of a philosopher, an idealist, and a friend. It finds that the service of these firms to corporate interests is a fundamental impediment to their success.” Horowitz focuses on the “unhappy extent to which cases chosen by many conservative public interest law firms focus on the needs of the business community, to the exclusion of other areas of interest.” His concern is that the conservative law foundations launched in the Powell Memo’s wake have been too pro-business and not enough pro-conservative “It is critical that the conservative movement seek out and find clients other than large corporations and corporate interests.”
https://openyls.law.yale.edu/bitstream/handle/20.500.13051/16290/74_93YaleLJ1415_July1984_.pdf?sequence=2&isAllowed=y.It took two decades for it to be noticed again, by Steven M. Teles in his revelatory and extraordinarily detailed masterpiece The Rise of the Conservative Legal Movement, which offers the most complete analysis and additional insight from foundation leaders.
7. Scaife’s role noted by Houck, 1512, and Teles, 67.
8. “Appallingly mediocre”: Teles, 70 and Horowitz, The Public Interest Law Movement: An Analysis with Special Reference to the Role and Practice of Conservative Public Interest Law Firms, unpublished
9. “Are tired, as is everybody, of the old answers”: Teles, 67
10. “Would echo throughout Washington”: In A Gift of Freedom (Encounter, 2006), John J. Miller notes that while the Horowitz Report was not “widely distributed,” the Scaife Foundation “made sure that it got into the hands of its philanthropic allies.” (pp 99-100)
11. Horowitz’s influence and credibility: At Olin, he says, the “staff and board … read Horowitz’s appraisal with great interest.” Miller, p. 100. At the time, Miller notes, “(t)here was a chance that the Federalist Society might have gone in another direction” as more traditional public-law litigants, but post-Horowitz, made the “decision to debate ideas.”
12. “Felt almost immediately”: Miller, p. 100
13. “These are my friends,” All Horowitz quotes, interview with the author
14. Horowitz’s upbringing was equal parts Jewish and American: Horowitz described his childhood and political coming of age in our interview, in an article called “Why I Am A Republican” in Common Sense, spring 1979, and available online in Morton Blackwell’s papers at the Reagan Library
https://www.reaganlibrary.gov/public/digitallibrary/smof/publicliaison/blackwell/box-016/40_047_7006969_016_001_2017.pdf as well as “Horowitz’s List” by Samuel G. Freedman, a New York magazine feature published March 31, 1997 when he was leading efforts to protect persecuted Christians worldwide. Accessible online at http://tinyurl.com/bdf7hfhp. -
15. “At first, my disquiet at the literal madness I saw”: “Why I Am A Republican,” p. 55
16. Richard Mellon Scaife: Mayer, Dark Money, 83-86
17. “The first idea was to copy what works”: “Scaife: Funding Father of the Right” by Robert G. Kaiser and Ira Chinoy, Washington Post, May 2, 1999. https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/scaifemain050299b.htm
18. In his memoir: cited by Mayer, Dark Money, 83-86
19. “Manufactured and controlled by a small group of powerful foundations,” Brock quoted by Mayer, 83.
20. “Created a new philanthropic form”: Mayer, 83
21. “Creation of a right-wing legal counter establishment”: Teles, p. 60-63; “Conservative Lawyers and the Contest Over the Meaning of Public Interest Law,” Ann Southworth, UCLA Law Review, 52 UCLA LAW REVIEW 1223 (2005); https://www.uclalawreview.org/wp-content/uploads/2019/09/30_52UCLALRev12232004-2005.pdf;
National Legal Center for the Public Interest history and funding at Source Watch https://www.sourcewatch.org/index.php/National_Legal_Center_for_the_Public_Interest
22. Amicus briefs but few tangible victories: Point made by Horowitz in interview and his Report, as well as Teles, Conservative Legal Movement
23. “No, that didn’t work”: Michael Greve, interview with the author
24. “I can’t remember how he got in there”: Charlie Halpern, interview with the author
25. “On a higher moral plane”: Teles, 67
26. “Episodic tactical victories, which will be dwarfed by social change”: Teles, 68, and Horowitz, The Public Interest Law Movement:
27. “Mere conduits”: Houck, 1517; Teles, 69 and Horowitz, The Public Interest Law Movement: An Analysis with Special Reference to the Role and Practice of Conservative Public Interest Law Firms, unpublished
28. “Essentially no impact”: Horowitz, The Public Interest Law Movement
29. “Neither the background nor capacity”: Horowitz, The Public Interest Law Movement
30. “Appallingly mediocre”: Horowitz, The Public Interest Law Movement and Teles
31. “Decline in power”: Horowitz, The Public Interest Law Movement
32. “Fellowship of like-minded people”: Horowitz, The Public Interest Law Movement
33. “That’s exactly right”: Michael Luttig interview with the author
34. “Certainly helped everything”: Greve interview with the author
35. “Before Mike’s report”: Edwin Meese interview with the author
36. “He made the introductions”: Lee Liberman Otis interview with the author
37. “Very first meaningful grants”: Greve interview with the author
38. “As conservatives, we had really nothing else going in the judicial world,” Piereson quoted in “Takeover” podcast/audio book by Noah Feldman, Pushkin, 2022, episode four.
39. “It's not clear whether we would have existed”: Meyer quoted in “Goals Reached, Donor on the Right Closes Up Shop,” New York Times, by Jason DeParle, May 29, 2005. https://www.nytimes.com/2005/05/29/politics/goals-reached-donor-on-right-closes-up-shop.html.
40. John Miller makes this case persuasively in an interview with The Giving Review. “(Olin’s Its legacy is not that Ronald Reagan was elected president, or George W. Bush, or whatever you want to say. Its legacy is today, there’s a Federalist Society. Or today, there is a network of right-of-center student publications on major campuses around the country, or that [the Law and Economics school of thought] is firmly established in law schools around America.” https://thegivingreview.com/a-conversation-with-journalist-and-author-john-j-miller-part-2-of-2/#:~:text=Miller's%20many%20books%20include%20two,Lynde%20and%20Harry%20Bradley%20Foundations.
-
Chapter Three
1. Sustained legal assault began: South Carolina v. Katzenbach, 383 U.S. 301 (1966). https://www.oyez.org/cases/1965/22_orig
2. Unfairly singled out the sovereign state: South Carolina’s brief can be accessed at https://dc.statelibrary.sc.gov/items/90ca9b14-60e1-4585-9410-3458871677cf
3. “Congress had found”: Warren’s decision can be read at South Carolina v. Katzenbach, 383 U.S. 301 (1966). https://www.oyez.org/cases/1965/22_orig
4. In Mississippi, for example: The Voting Rights Act and Mississippi: 1965-2006 by Robert McDuff, 7 Rev. L. & Soc. Just. 475, 478-79 (2008), https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/issue_17/05_Mississippi_ Macro.pdf
Current Conditions of Voting Rights Discrimination Mississippi: A report by the Southern Poverty Law Center, submitted by the Leadership Conference to the House Committee on the Judiciary, August 16, 2021
https://andstillivote.org/wp-content/uploads/2022/08/Mississippi-HHRG-117-JU10-Wstate-HendersonW-20210816-SD014.pdf5. Allen v State Board of Elections: Allen v. State Bd. of Elections, 393 U.S. 544 (1969)
https://supreme.justia.com/cases/federal/us/393/544/6. “Aimed at the subtle, as well as the obvious”: Warren opinion at Allen v. State Bd. of Elections, 393 U.S. 544 (1969)
https://supreme.justia.com/cases/federal/us/393/544/7. “Congress intended to reach any enactment”: Warren opinion at Allen v. State Bd. of Elections, 393 U.S. 544 (1969)
https://supreme.justia.com/cases/federal/us/393/544/8. Most segregated cities, whites in south and west, Blacks central and to the north, 100 percent Black or white: “Housing patterns have been, and remain, highly segregated. Certain areas of the city are almost totally devoid of black residents while other areas are virtually all black.” Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/9. Racially polarized voting: From the decision: “One city commissioner, Joseph N. Langan, who served from 1953 to 1969, had been elected and reelected with black support until the 1965 Voting Rights Act enfranchised large numbers of blacks. His reelection campaign in 1969 foundered mainly because of the fact of the backlash from the black support and his identification with attempting to meet the particularized needs of the black people of the city. He was again defeated in an at-large county commission race in 1972. Again the backlash because of the black support substantially contributed to his defeat. In 1969, a black got in a run-off against a white in an at-large legislature race. There was an agreement between various white prospective candidates not to run or place an opponent against the white in the run-off so as not to splinter the white vote. The white won and the black lost. Practically all active candidates for public office testified it is highly unlikely that anytime in the foreseeable future, under the at-large system, that a black can be elected against a white. Most of them agreed that racial polarization was the basic reason.” Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/10. Oldest tricks in the Jim Crow playbook: The bias of at-large elections, Nonprofit Vote, August 16, 2017
https://www.nonprofitvote.org/the-bias-of-at-large-elections-how-it-works/James U. Blacksher and Larry T. Menefee, From Reynolds v. Sims to City of Mobile v. Bolden: Have the White Suburbs Commandeered the Fifteenth Amendment, 34 Hastings L.J. 1 (1982). Available at: https://repository.uchastings.edu/hastings_law_journal/vol34/iss1/1
11. Originally halted by Congress in 1842: The history of single member districts for Congress by Tory Mast, FairVote
https://archive.fairvote.org/?page=52612. Explodes after Civil War: The bias of at-large elections, Nonprofit Vote, August 16, 2017
https://www.nonprofitvote.org/the-bias-of-at-large-elections-how-it-works/Democracy decoded, season three, episode seven
https://campaignlegal.org/democracy-decoded/season-3/episode-7-transcript -
“This heritage of white supremacy”: Voting Rights in Alabama 1982-2006 by James Blacksher et al, Gould USC Law Review
https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/issue_17/04_Alabama_Macro.pdf
James U. Blacksher and Larry T. Menefee, From Reynolds v. Sims to City of Mobile v. Bolden: Have the White Suburbs Commandeered the Fifteenth Amendment, 34 Hastings L.J. 1 (1982). Available at: https://repository.uchastings.edu/hastings_law_journal/vol34/iss1/1
At-large council elections in 1911: Peyton McCrary, "History in the Courts: The Significance of City of Mobile v. Bolden," in Davidson (ed.), Minority Vote Dilution (Washington, D.C., 1984), 47-63.
https://www.congress.gov/116/meeting/house/109049/witnesses/HHRG-116-JU10-Wstate-McCraryP-20190312.pdf
The new set-up worked beautifully: It was not hidden. The editor of the Mobile newspaper admitted in a 1907 editorial that “It is a well-known historical fact” that when the districts were drawn in 1879, the point was to “preserve white supremacy.” Africatown: America’s Last Slave Ship and the Community It Created by Nick Tabor, 2023, St. Martins, excerpted in Grist.
https://grist.org/race/africatown-excerpt-progressive-era-environmental-justice/
Another taken for granted feature: One person who would take this for granted and seem unaware to all this history, as we will see: Justice Lewis Powell
“Establish white supremacy in this state”: Alabama’s 1901 Constitution: Instrument of Power, University of Alabama School of Law, citing the Journal of the Proceedings of the Constitutional Convention (1901).
https://www.law.ua.edu/specialcollections/2016/12/09/alabamas-1901-constitution-instrument-of-power/
White v Regester: White v. Regester, 412 U.S. 755 (1973)
https://supreme.justia.com/cases/federal/us/412/755/
Meaher and Clotilda: For more on Meaher, see Africatown: America’s Last Slave Ship and The Community It Created by Nick Tabor, St Martins, 2023
The Last Slave Ship: The True Story of How Clotilda Was Found, Her Descendants, and an Extraordinary Reckoning Hardcover by Ben Raines, Simon and Schuster, 2022
The Survivors of the Clotilda: The Lost Stories of the Last Captives of the American Slave Trade by Hannah Durkin, Amistad, 2024
Margaret Brown documentary, Descendant, Participant Media, streaming on Netflix, 2022
Spent weekends in style: Africatown, Alabama Was Founded After A White Man Bet He Could Smuggle in a Hundred New African Slaves, Costing Thousands Their Lives by
Shannon Quinn, History Collection, October 20, 2018
https://historycollection.com/africatown-alabama-was-founded-after-a-white-man-bet-he-could-smuggle-in-a-hundred-new-african-slaves-costing-thousands-their-lives/
Africatown: America’s Last Slave Ship and The Community It Created by Nick Tabor, St Martins, 2023
The Last Slave Ship: The True Story of How Clotilda Was Found, Her Descendants, and an Extraordinary Reckoning by Ben Raines, Simon and Schuster, 2022
The Survivors of the Clotilda: The Lost Stories of the Last Captives of the American Slave Trade by Hannah Durkin, Amistad, 2024
Margaret Brown documentary, Descendant, Participant Media, streaming on Netflix, 2022
“Inside two years”: Meaher boast, among others, Descendants of Last Slave Ship Still Live in Alabama Community by Becky Little, History Channel, May 21, 2018
https://www.history.com/news/slaves-clotilda-ship-built-africatown
Reckoning with the slave ship Clotilda by Vera Carothers, the New Yorker, September 21, 2022
https://www.newyorker.com/culture/culture-desk/reckoning-with-the-slave-ship-clotilda
Foster departed with $9,000: Among others, Africatown, Alabama Was Founded After A White Man Bet He Could Smuggle in a Hundred New African Slaves, Costing Thousands Their Lives by
Shannon Quinn, History Collection, October 20, 2018
https://historycollection.com/africatown-alabama-was-founded-after-a-white-man-bet-he-could-smuggle-in-a-hundred-new-african-slaves-costing-thousands-their-lives/
Together they transferred the smuggled slaves: Among others, Africatown, Alabama Was Founded After A White Man Bet He Could Smuggle in a Hundred New African Slaves, Costing Thousands Their Lives by
Shannon Quinn, History Collection, October 20, 2018
https://historycollection.com/africatown-alabama-was-founded-after-a-white-man-bet-he-could-smuggle-in-a-hundred-new-african-slaves-costing-thousands-their-lives/
Not discovered offshore until 2018: Reporter May Have Discovered Clotilda, The Last American Slave Ship by Vanessa Romo, NPR, January 25, 2018
https://www.npr.org/sections/thetwo-way/2018/01/25/580052897/reporter-may-have-discovered-clotilda-the-last-american-slave-ship
Eluded charges: According to the Equal Justice Initiative, “In 1861, Mr. Meaher and his partners were prosecuted for illegally trafficking the Africans into the country, but a federal court dismissed the case as the Civil War began. No investigation or remedy ever involved the actual African men and women central to the case; while the federal case was pending, the Africans Mr. Meaher had claimed remained on his property left to fend for themselves and were offered no means of returning to Ghana.” https://calendar.eji.org/racial-injustice/jul/8
Africatown: Africatown: America’s Last Slave Ship and The Community It Created by Nick Tabor, St Martins, 2023
The Last Slave Ship: The True Story of How Clotilda Was Found, Her Descendants, and an Extraordinary Reckoning by Ben Raines, Simon and Schuster, 2022
The Survivors of the Clotilda: The Lost Stories of the Last Captives of the American Slave Trade by Hannah Durkin, Amistad, 2024
Margaret Brown documentary, Descendant, Participant Media, streaming on Netflix, 2022
Endeavored to stop them from voting: Auburn engineering alumnus discusses family, Alabama connection to last American slave ship by Joe McAdory, February 3, 2022
https://ocm.auburn.edu/newsroom/news_articles/2022/02/031105-jeremy-ellis-engineering.php
Highway connector: Africatown: America’s Last Slave Ship and The Community It Created by Nick Tabor, St Martins, 2023 as excerpted in Smithsonian magazine, https://www.smithsonianmag.com/history/the-forgotten-1980s-battle-to-preserve-africatown-180981641/
‘A voice at the table’: In Africatown, patience wears thin over I-10 project by John Sharp, Alabama.com, September 25, 2021
https://www.al.com/news/2021/09/a-voice-at-the-table-in-africatown-patience-wears-thin-over-i-10-project.html
Many residents had contracted cancer: Africatown Is Still Trying to Breathe by Christopher Harress, Next City, March 6, 2024
https://nextcity.org/features/africatown-rail-industrial-pollution-port-cities
Africatown residents fight industrial pollution, Equal Justice Initiative, January 31, 2018
https://eji.org/news/africatown-residents-fight-industrial-pollution/
-
'Still fighting': Africatown, site of last US slave shipment, sues over pollution by Lauren Zannoli, The Guardian, January 26, 2018
https://www.theguardian.com/us-news/2018/jan/26/africatown-site-of-last-us-slave-ship-arrival-sues-over-factorys-pollution
How the seeds of environmental racism were planted in the Progressive Era by Nick Tabor, Grist, February 2023
https://grist.org/race/africatown-excerpt-progressive-era-environmental-justice/
Amid slave ship discovery, Africatown still in pollution fight by Christopher Harress, February 1, 2018, Alabama.com
https://www.al.com/news/2018/02/amid_slave_ship_discovery_afri.html
Believed to be connected: Many residents had contracted cancer: Africatown Is Still Trying to Breathe by Christopher Harress, Next City, March 6, 2024
https://nextcity.org/features/africatown-rail-industrial-pollution-port-cities
Africatown residents fight industrial pollution, Equal Justice Iniative, January 31, 2018
https://eji.org/news/africatown-residents-fight-industrial-pollution/
'Still fighting': Africatown, site of last US slave shipment, sues over pollution by Lauren Zannoli, The Guardian, January 26, 2018
https://www.theguardian.com/us-news/2018/jan/26/africatown-site-of-last-us-slave-ship-arrival-sues-over-factorys-pollution
Settled a lawsuit in fall 2020: Africatown Is Still Trying to Breathe by Christopher Harress, Next City, March 6, 2024
https://nextcity.org/features/africatown-rail-industrial-pollution-port-cities
New pastors would arrive: 'Still fighting': Africatown, site of last US slave shipment, sues over pollution by Lauren Zannoli, The Guardian, January 26, 2018
https://www.theguardian.com/us-news/2018/jan/26/africatown-site-of-last-us-slave-ship-arrival-sues-over-factorys-pollution
New cars would rust: Still fighting': Africatown, site of last US slave shipment, sues over pollution by Lauren Zannoli, The Guardian, January 26, 2018
https://www.theguardian.com/us-news/2018/jan/26/africatown-site-of-last-us-slave-ship-arrival-sues-over-factorys-pollution
Vegetable gardens would fill with ash: Still fighting: Africatown, site of last US slave shipment, sues over pollution by Lauren Zannoli, The Guardian, January 26, 2018
https://www.theguardian.com/us-news/2018/jan/26/africatown-site-of-last-us-slave-ship-arrival-sues-over-factorys-pollution
Conservative academics: Give Us The Ballot: The Modern Struggle for Voting Rights in America by Ari Berman, Farrar Straus & Giroux, New York, 2015, pp 123-27
Harlan and colorblind constitution: Give Us The Ballot: The Modern Struggle for Voting Rights in America by Ari Berman, Farrar Straus & Giroux, New York, 2015, pp 123-27
Nathan Glazer: Give Us The Ballot: The Modern Struggle for Voting Rights in America by Ari Berman, Farrar Straus & Giroux, New York, 2015, pp 127-31
“In 1964 we declared that no account should be taken of race”: Give Us The Ballot: The Modern Struggle for Voting Rights in America by Ari Berman, Farrar Straus & Giroux, New York, 2015, pp 128
Thernstrom and Glazer, Thernstrom and Blum: Give Us The Ballot: The Modern Struggle for Voting Rights in America by Ari Berman, Farrar Straus & Giroux, New York, 2015, pp 127-31, 238-39
“All action necessary to make a vote effective”: Warren decision in Allen v. State Bd. of Elections, 393 U.S. 544 (1969)
https://supreme.justia.com/cases/federal/us/393/544/#tab-opinion-1947799
Coalition support rejected: Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
“We were trying to exclude not the ignorant vote but the Negro vote”: This letter came two years after the newspaper editor plainly stated the same thing. Among others, A voting rights letter for Congress, the New York Times, April 27, 1982
https://www.nytimes.com/1982/04/27/opinion/a-voting-rights-letter-for-congress.html
The editor of the Mobile newspaper admitted in a 1907 editorial that “It is a well-known historical fact” that when the districts were drawn in 1879, the point was to “preserve white supremacy.” Africatown: America’s Last Slave Ship and the Community It Created by Nick Tabor, 2023, St. Martins, excerpted in Grist.
https://grist.org/race/africatown-excerpt-progressive-era-environmental-justice/
“If you were black in Mobile”: Larry Menefee interview with the author
Virgil Pittman, crosses burned: Pariah to 'hero' -- how Judge Virgil Pittman transformed Mobile and his own image by Brendan Kirby, AL.com, January 22, 2012
https://www.al.com/live/2012/01/pariah_to_hero_--_how_judge_vi.html
Klan marches through town: How a detective who was blamed for one lynching solved another by Kevin Lee, Daily Beast, March 22, 2021
https://www.thedailybeast.com/how-a-detective-who-was-blamed-for-one-lynching-solved-another
Stops attending church: Pariah to 'hero' -- how Judge Virgil Pittman transformed Mobile and his own image by Brendan Kirby, AL.com, January 22, 2012
https://www.al.com/live/2012/01/pariah_to_hero_--_how_judge_vi.html
He walked across the city: Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
“All temporary relief has been in the white areas”: Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
First class roads curbs and gutters: Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
Mobile fire dept – 15 of 435: Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
Police – court order: Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
Mock lynching of black suspect in mobile: Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
-
Pervasiveness of the fear of white backlash: Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
Mobile county commossom under court order: Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
Federal litigation to deseg golf course and airport: Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
All boards totally white: Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
Still in evidence today: Pittman decision in Bolden v City of Mobile, 23 F. Supp. 384 (1976), United States District Court, S. D. Alabama, S. D., October 21, 1976.
https://law.justia.com/cases/federal/district-courts/FSupp/423/384/2393812/
Pittmanville: Pariah to 'hero' -- how Judge Virgil Pittman transformed Mobile and his own image by Brendan Kirby, AL.com, January 22, 2012
https://www.al.com/live/2012/01/pariah_to_hero_--_how_judge_vi.html
Potter Stewart papers: Potter Stewart Papers (MS 1367). Manuscripts and Archives, Yale University Library.
Lewis Powell papers: Lewis F. Powell Jr. Papers, 1921-1998, Ms 001, Lewis F. Powell, Jr. Archives, Washington and Lee University, Lexington, VA
https://law.wlu.edu/powell-archives/powell-papers
“Thurgood’s dissent is vulnerable”: Letter from Lewis Powell to Potter Stewart, February 28, 1980. Potter Stewart Papers (MS 1367). Manuscripts and Archives, Yale University Library. https://archives.yale.edu/repositories/12/archival_objects/1701838 Accessed December 22, 2022.
“Has never been viewed, so far as I know”: Powell papers. Letter from Powell addressed to “clerk,” February 26, 1979, page 4. City of Mobile, Alabama v. Bolden. Supreme Court Case Files Collection. Box 164. Powell Papers. Lewis F. Powell Jr. Archives, Washington & Lee University School of Law, Virginia.
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1303&context=casefiles
“I doubt that anyone thought”: Powell papers. Letter from Powell addressed to “clerk,” February 26, 1979, pages 4-5.
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1303&context=casefiles
Later, Powell mocks Judge Pittman’s conclusion that the at-large system was discriminatory because Alabama legislators should have known Blacks would someday have a protected right to vote. “Wow,” Powell writes by hand, seemingly stunned at this notion, then adding “what prescience!” (page 37) City of Mobile, Alabama v. Bolden. Supreme Court Case Files Collection. Box 164. Powell Papers. Lewis F. Powell Jr. Archives, Washington & Lee University School of Law, Virginia.
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1303&context=casefiles
“Judicially imposed” and “unprecedented”: Powell papers. City of Mobile, Alabama v. Bolden. Supreme Court Case Files Collection. Box 164. Powell Papers. Lewis F. Powell Jr. Archives, Washington & Lee University School of Law, Virginia.
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1303&context=casefiles
“With obvious enthusiasm”: Powell papers. City of Mobile, Alabama v. Bolden. Supreme Court Case Files Collection. Box 164. Powell Papers. Lewis F. Powell Jr. Archives, Washington & Lee University School of Law, Virginia.
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1303&context=casefiles
“Not circulating to other judges”: Powell letter to Stewart, January 7, 1980. “No group is entitled, as a amatter of wright, to representation in an elected body,” Powell writes. (T)he court has moved, though not in a straight line, away from that sound doctrine, particularly in cases under section 5 of the Voting Rights Act.” After offering ideas on how to strengthen language to ensure “This litigation should come to an end,” Powell concludes that “I am not sending copies of this letter to the other Chambers.” Letter from Lewis Powell to Potter Stewart, January 7, 1980. Potter Stewart Papers (MS 1367). Manuscripts and Archives, Yale University Library. https://archives.yale.edu/repositories/12/archival_objects/1701838 Accessed December 22, 2022.
“The answer to the appellees’ argument”: Powell papers. City of Mobile, Alabama v. Bolden. Supreme Court Case Files Collection. Box 164. Powell Papers. Lewis F. Powell Jr. Archives, Washington & Lee University School of Law, Virginia
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1303&context=casefiles
and Potter Stewart Papers (MS 1367). Manuscripts and Archives, Yale University Library. https://archives.yale.edu/repositories/12/archival_objects/1701838 Accessed December 22, 2022.
“If this becomes a court opinion”: Powell papers. City of Mobile, Alabama v. Bolden. Supreme Court Case Files Collection. Box 164. Powell Papers. Lewis F. Powell Jr. Archives, Washington & Lee University School of Law, Virginia.
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1303&context=casefiles
“My side”: Letter from Lewis Powell to Potter Stewart, February 28, 1980. Potter Stewart Papers (MS 1367). Manuscripts and Archives, Yale University Library. https://archives.yale.edu/repositories/12/archival_objects/1701838 Accessed December 22, 2022.
“Our cities could become jungles”: Letter from Lewis Powell to Potter Stewart, February 28, 1980. “Thurgood’s dissent is vulnerable when our decisions are properly applied, but it is facially impressive. I think it warrants a full response,” Powell writes. “Apart from my interest in having ‘my side’ prevail in a case, I view this case as critical to the successful governance of our cities. I know from experience that wholly without regard to minorities, a ward system is detrimental to good municipal government.” But then he returned to minorities. “If a decision by this Court required wards, and that they be shaped to assure proportional representation of identifiable “political groups”, our cities could become jungles.” Potter Stewart Papers (MS 1367). Manuscripts and Archives, Yale University Library. https://archives.yale.edu/repositories/12/archival_objects/1701838 Accessed December 22, 2022.
Powell memo:
https://scholarlycommons.law.wlu.edu/powellmemo/
Decision in City of Mobile v Bolden: City of Mobile v. Bolden, 446 U.S. 55 (1980)
https://supreme.justia.com/cases/federal/us/446/55/
Thurgood Marshall’s dissent: City of Mobile v. Bolden, 446 U.S. 55 (1980)
https://supreme.justia.com/cases/federal/us/446/55/
Rewrote the standard, impossible to meet
“Their freedom to vote has not been denied or abridged by anyone”: City of Mobile v. Bolden, 446 U.S. 55 (1980)
https://supreme.justia.com/cases/federal/us/446/55/
-
Chapter Four
1. Chapter four: Joan Biskupic has written the essential biography of Roberts in The Chief, which provided much important detail and background here. Her work at the Court has few peers.
2. John Roberts’s life work: Charles Fried, interview with author
3. Didn’t have much relation to his actual childhood: At Slate, Bruce Reed hunted without success for silos and barns. He could not find them. “The Has-Been has been wandering the prairies in search of those images. Here's one of his boyhood home that shows limitless possibilities, but no barn. Here's one of his club, with endless fields but no silo. Here's his school, La Lumiere, where he found punctuation, but no horizon.”
https://www.slate.com/articles/news_and_politics/the_hasbeen/2005/09/the_loot_stops_here.html4. Spent his most formative years: The best telling of Roberts’s childhood and pre-Harvard years is in Joan Biskupic’s essential biography, from which much of this quick telling is learned. The Chief by Joan Biskupic, Basic Books, 2019 pp. 22-29
I also drew biographical detail throughout this chapter from many of the terrific profiles written upon Roberts’s nomination to the court. They include:
Tiny Insular Town Was Home by P.J. Huffstutter, Los Angeles Times, July 21, 2005
https://www.latimes.com/archives/la-xpm-2005-jul-21-na-profile21-story.htmlCourt Nominee's Life Is Rooted in Faith and Respect for Law by Todd S. Purdum, Jodi Wilgoren and Pam Belluck, New York Times, July 21, 2005
https://www.nytimes.com/2005/07/21/politics/court-nominees-life-is-rooted-in-faith-and-respect-for-law.htmlFew Have Felt Beat of Roberts's Political Heart by Michael Grunwald and Amy Goldstein, Washington Post, July 23, 2005
https://www.washingtonpost.com/archive/politics/2005/07/24/few-have-felt-beat-of-robertss-political-heart/1fc0cbc1-34ab-4e0c-8f89-1da0363d74d1/Roberts started on path to success at young age, Washington Times, August 16, 2005
https://www.washingtontimes.com/news/2005/aug/16/20050816-122951-1663r/Midwestern Scholar With a Steady Conservative Bent by Amy Goldstein and R. Jeffrey Smith, Washington Post, September 4, 2005
https://www.washingtonpost.com/archive/politics/2005/09/04/midwestern-scholar-with-a-steady-conservative-bent/6bbef0ef-1dad-4164-a089-e2dc564d3135/No More Mr. Nice Guy by Jeffrey Toobin, the New Yorker, May 18, 2009
https://www.newyorker.com/magazine/2009/05/25/no-more-mr-nice-guyRoberts holds politics close to vest by Amy Goldstein and Michael Grunwald, Washington Post, July 24, 2005
https://www.seattletimes.com/nation-world/roberts-holds-politics-close-to-vest/As clerk for Rehnquist, nominee stood out for conservative rigor, By Adam Liptak and Todd S. Purdum, New York Times, July 31, 2005
https://www.nytimes.com/2005/07/31/politics/politicsspecial1/as-clerk-for-rehnquist-nominee-stood-out-for.htmlRoberts blends low-key style, high ambition by Peter Grier, Christian Science Monitor, July 25, 2005
https://www.csmonitor.com/2005/0725/p01s01-uspo.htmlJohn Roberts’s rule: Reach for the top: Chicago Tribune, July 24, 2005
https://www.chicagotribune.com/2005/07/24/john-roberts-rule-reach-for-the-top/5. Prep schools, country clubs and water-skiing: In Long Beach, Biskupic writes, “On weekends or after school … children raced around on bikes and regularly visited Ronnie’s a neighborhood store known for its candy counter with licorice, chocolate bits and Mary Jane taffy-like candies.” The Chief by Joan Biskupic, Basic Books, 2019 pp. 22-29
6. Yellow mock-Tudor split-level: The Chief by Joan Biskupic, Basic Books, 2019 pp. 22-29 and
Roberts holds politics close to vest by Amy Goldstein and Michael Grunwald, Washington Post, July 24, 2005
https://www.seattletimes.com/nation-world/roberts-holds-politics-close-to-vest/7. “Highly restricted home community”: The Chief by Joan Biskupic, Basic Books, 2019 pp. 22-29
8. La Lumiere details from The Chief by Joan Biskupic, Basic Books, 2019 pp. 22-29
Roberts blends low-key style, high ambition by Peter Grier, Christian Science Monitor, July 25, 2005
https://www.csmonitor.com/2005/0725/p01s01-uspo.html
John Roberts’s rule: Reach for the top: Chicago Tribune, July 24, 2005
https://www.chicagotribune.com/2005/07/24/john-roberts-rule-reach-for-the-top/
Tiny Insular Town Was Home by P.J. Huffstutter, Los Angeles Times, July 21, 2005
https://www.latimes.com/archives/la-xpm-2005-jul-21-na-profile21-story.html
Court Nominee's Life Is Rooted in Faith and Respect for Law by Todd S. Purdum, Jodi Wilgoren and Pam Belluck, New York Times, July 21, 2005
https://www.nytimes.com/2005/07/21/politics/court-nominees-life-is-rooted-in-faith-and-respect-for-law.html
Roberts started on path to success at young age, Washington Times, August 16, 2005
https://www.washingtontimes.com/news/2005/aug/16/20050816-122951-1663r/
Midwestern Scholar With a Steady Conservative Bent by Amy Goldstein and R. Jeffrey Smith, Washington Post, September 4, 2005
Few Have Felt Beat of Roberts's Political Heart by Michael Grunwald and Amy Goldstein, Washington Post, July 23, 2005
https://www.washingtonpost.com/archive/politics/2005/07/24/few-have-felt-beat-of-robertss-political-heart/1fc0cbc1-34ab-4e0c-8f89-1da0363d74d1/
9. $7,000 tuition and “Haven of formality”: Few Have Felt Beat of Roberts's Political Heart by Michael Grunwald and Amy Goldstein, Washington Post, July 23, 2005
https://www.washingtonpost.com/archive/politics/2005/07/24/few-have-felt-beat-of-robertss-political-heart/1fc0cbc1-34ab-4e0c-8f89-1da0363d74d1/
10. “Stay ahead of the crowd”: Roberts letter cited in, among other profiles, Few Have Felt Beat of Roberts's Political Heart by Michael Grunwald and Amy Goldstein, Washington Post, July 23, 2005
https://www.washingtonpost.com/archive/politics/2005/07/24/few-have-felt-beat-of-robertss-political-heart/1fc0cbc1-34ab-4e0c-8f89-1da0363d74d1/
11. “Too sophisticated for that”: The Chief by Joan Biskupic, Basic Books, 2019 pp. 22-29, citing “Laying Down His Own Law,” by Paul Brownfield, Los Angeles Times, Sept. 13. 1999
https://www.latimes.com/archives/la-xpm-1999-jan-31-ca-3255-story.html
12. “I tend to think that the presence of the opposite sex in the classroom will be confining rather than catholicizing,” he wrote. “I would prefer to discuss Shakespeare’s double entendre and the latus rectum of conic sections without a [b]londe giggling and blushing behind me.” Roberts started on path to success at young age, Washington Times, August 16, 2005
https://www.washingtontimes.com/news/2005/aug/16/20050816-122951-1663r/
13. At least one summer working at Bethelem Steel: Judge Roberts was born in Buffalo and grew up in Indiana. In high school, he captained his football team, and he worked summers in a steel mill to help pay his way through college.
https://www.presidency.ucsb.edu/documents/address-the-nation-announcing-the-nomination-john-g-roberts-jr-be-associate-justice-the
14. $12-16 an hour: Few Have Felt Beat of Roberts's Political Heart by Michael Grunwald and Amy Goldstein, Washington Post, July 23, 2005
https://www.washingtonpost.com/archive/politics/2005/07/24/few-have-felt-beat-of-robertss-political-heart/1fc0cbc1-34ab-4e0c-8f89-1da0363d74d1/
15. His years in Cambridge: The Chief by Joan Biskupic, Basic Books, 2019 pp. 22-29,
Roberts’s Harvard roots: A movement was stirring by Janny Scott, New York Times, August 21, 2005
https://www.nytimes.com/2005/08/21/politics/politicsspecial1/robertss-harvard-roots-a-movement-was-stirring.html
Few Have Felt Beat of Roberts's Political Heart by Michael Grunwald and Amy Goldstein, Washington Post, July 23, 2005
https://www.washingtonpost.com/archive/politics/2005/07/24/few-have-felt-beat-of-robertss-political-heart/1fc0cbc1-34ab-4e0c-8f89-1da0363d74d1/
16. St. Paul’s: The Chief by Joan Biskupic, Basic Books, 2019 pp. 22-29
17. Simply didn’t engage: The Chief by Joan Biskupic, Basic Books, 2019 pp. 22-29
No More Mr. Nice Guy by Jeffrey Toobin, The New Yorker, May 25, 2009
https://www.newyorker.com/magazine/2009/05/25/no-more-mr-nice-guy -
Roberts’s Harvard roots: A movement was stirring by Janny Scott, New York Times, August 21, 2005
https://www.nytimes.com/2005/08/21/politics/politicsspecial1/robertss-harvard-roots-a-movement-was-stirring.html
Few Have Felt Beat of Roberts's Political Heart by Michael Grunwald and Amy Goldstein, Washington Post, July 23, 2005
https://www.washingtonpost.com/archive/politics/2005/07/24/few-have-felt-beat-of-robertss-political-heart/1fc0cbc1-34ab-4e0c-8f89-1da0363d74d1/
He was really good at being very thoughtful and careful and not particularly conspicuous: Tribe quoted in No More Mr. Nice Guy by Jeffrey Toobin, The New Yorker, May 25, 2009
https://www.newyorker.com/magazine/2009/05/25/no-more-mr-nice-guy
“I only wish I had a plausible explanation”: Subsequent Tribe quotes from an email interview with the author
Washington v Davis:
https://www.oyez.org/cases/1975/74-1492
Regents of California v Bakke:
https://www.oyez.org/cases/1979/76-811
Rehnquist Club: Few Have Felt Beat of Roberts's Political Heart by Michael Grunwald and Amy Goldstein, Washington Post, July 23, 2005
https://www.washingtonpost.com/archive/politics/2005/07/24/few-have-felt-beat-of-robertss-political-heart/1fc0cbc1-34ab-4e0c-8f89-1da0363d74d1/
“In college and law school, Roberts projected a Midwestern reserve and quiet conservatism. He arrived at Harvard a fully-formed conservative on a Cambridge campus dominated by liberals, but he abstained from ideological warfare. He did not join the Rehnquist Club, a Federalist Society precursor established by conservative law students.”
Snyder, Brad, The Judicial Genealogy (and Mythology) of John Roberts: Clerkships from Gray to Brandeis to Friendly to Roberts (December 8, 2010). Ohio State Law Journal, Vol. 71, No. 1149, 2010, Univ. of Wisconsin Legal Studies Research Paper No. 1146, https://ssrn.com/abstract=1722362 or http://dx.doi.org/10.2139/ssrn.1722362
Roberts effusively praised Friendly’s modesty duing his confirmation hearings, in an answer that goes on longer than a full page: “He had such a total commitment to excellence in his craft at every stage of the process, just a total devotion to the rule of law and the confidence that if you just worked hard enough at it, you’d come up with the right answers. And it was his devotion to the rule of law that he took the most pleasure in. He liked the fact that the editorialists of the day couldn’t decide whether he was a liberal or a conservative, and he would be chastised for the same opinion, depending on which paper had read it, as either that conservative judge or that liberal judge, and because he wasn’t adhering to a political ideology, he was adhering to the rule of law. … I think everybody would have agreed we would have a better result if we just let him make the decision, regardless of what it was. But he had the essential humility to appreciate that he was a judge, and that this decision should be made by this agency or this decision by that legislature.”
https://www.judiciary.senate.gov/imo/media/doc/GPO-CHRG-ROBERTS.pdf
Roberts had less personal praise for Rehnquist. Asked about the late chief’s influence, he suggested he learned merely an efficient writing style. “With the then-Justice Rehnquist, who I clerked for the next year, I do remember doing a draft for him once, and coming in and he had thought that it was sort of the first topic sentence of each paragraph was good, and the rest of it could be junked. You know, I pushed back a little bit as I hoped was appropriate, and he said at that point, he said, ‘‘Well, I’ll tell you what. Why don’t we put all this other stuff down in footnotes? We’ll just keep sort of the first sentence of each paragraph, put the rest down in footnotes.’’ And I figured, well, that was a fair compromise. So I would go back and rework it, and hand it to him with some pride, and he looks and he says, ‘‘Well, all right. Now take out the footnotes.’’ So one thing I learned from him was, I hope, to try to write crisply and efficiently, that a lot of extra stuff could be dispensed with.”
https://www.judiciary.senate.gov/imo/media/doc/GPO-CHRG-ROBERTS.pdf
Operation Eagle Eye: The Politics of Voter Suppression by Tova Andrea Wang, Cornell University Press, 2012
http://www.jstor.org/stable/10.7591/j.cttq42k4.8
Rehnquist in Arizona: A militant conservative in 60s politics by Robert Lindsay, New York Times, August 4, 1986
https://www.nytimes.com/1986/08/04/us/rehnquist-in-arizona-a-militant-conservative-in-60-s-politics.html
‘'We see through the sham': Arizona election proposals remind some of harassment of Black voters in 1960s, by Ray Stern, Arizona Republic, February 16, 2022
https://www.azcentral.com/story/news/politics/legislature/2022/02/16/some-see-parallels-past-harassment-black-voters-arizona-history/6653989001/
1971 confirmation hearings: Rehnquist testified that “In 1958 I became involved in the election day program on quite short notice. Spent all the day at Republican county headquarters at Phoenix. In 1960 on election day, I believe that I spent most of the day in county headquarters. In that year, however, we had enough other lawyers available in county headquarters so that I probably spent some of the day going to precincts where a dispute had risen and attempted to resolve it. With respect to 1962 on election day, my recollection is that I spent most of the day in Republican county headquarters; however, I think that on several occasions in 1962 just as in 1960 I went to precincts where disputes had arisen in an effort to resolve them. With respect to 1964, my recollection is that on election day during this particular election I spent all of my time in county headquarters. In none of these years did I personally engage in challenging the qualifications of any voters. I have not, either in the general election of 1964 or in any other election, at Bethune precinct or in any other precinct, either myself, harassed or intimidated voters or encouraged or approved of harassment or intimidation of voters by other persons.”
1986 confirmation hearings: Four rebut testimony of Rehnquist on challenging of voters in ‘60s by Stuart Taylor, New York Times, August 2, 1986
https://www.nytimes.com/1986/08/02/us/4-rebut-testimony-of-rehnquist-on-challenging-of-voters-in-60-s.html
Multiple onlookers describe: Four rebut testimony of Rehnquist on challenging of voters in ‘60s by Stuart Taylor, New York Times, August 2, 1986
https://www.nytimes.com/1986/08/02/us/4-rebut-testimony-of-rehnquist-on-challenging-of-voters-in-60-s.html
“As I recall” and “my memory is”:
Here is a sample of the back and forth between Rehnquist and Sen. Kennedy in 1986:
https://www.govinfo.gov/content/pkg/GPO-CHRG-REHNQUIST/pdf/GPO-CHRG-REHNQUIST.pdf
KENNEDY: Mr. James Brosnahan, a prominent San Francisco attorney, former assistant U.S. attorney in Phoenix stated that on election day 1962 he received complaints of voter harassment at polling places. The complaints were that Republican challengers were challenging voters on the grounds that they could not read. He went to a precinct with an FBI agent. You were sitting at a table where the voter challenger sits. A number of the people complained to Mr. Brosnahan that you had been challenging voters. Do you know Mr. Brosnahan?
Justice REHNQUIST. Yes, I do.
Senator KENNEDY. Did you engage in any of these activities, Mr. Rehnquist?
Justice REHNQUIST. Would you read me again what Mr. Brosnahan says that I did.
Senator KENNEDY. He said he went to a precinct with an FBI agent and you were there sitting at a table where the voter challenger sits, and a number of people complained to Brosnahan that you had been challenging voters.
Justice REHNQUIST. NO, I do not think that is correct.
Senator KENNEDY. Well, are any of the other statements that I just read correct. Justice REHNQUIST. NO, I do not believe they are.
Senator KENNEDY. Would you not remember something like that if it had happened?
Justice REHNQUIST. I would think I would, yes.
Senator KENNEDY. Are all these witnesses wrong?
Justice REHNQUIST. Well, Senator, I gave my best recollection in 1971. I reviewed that statement, and that stands as the best of my knowledge. So I suppose if they say I did something that I have said I did not do, I would have to say, yes, they are wrong
Lito Pena: Pena, who later served three decades in the Arizona legislature, tells his story in Just Our Bill, by Dennis Roddy, Pittsburgh Post Gazette, December 2, 2000.
As Roddy explains, “Lito Pena is sure of his memory. Thirty-six years ago he, then a Democratic Party poll watcher, got into a shoving match with a Republican who had spent the opening hours of the 1964 election doing his damnedest to keep people from voting in south Phoenix. "He was holding up minority voters because he knew they were going to vote Democratic," said Pena. The guy called himself Bill. He knew the law and applied it with the precision of a swordsman. He sat at the table at the Bethune School, a polling place brimming with black citizens, and quizzed voters ad nauseam about where they were from, how long they'd lived there -- every question in the book. A passage of the Constitution was read and people who spoke broken English were ordered to interpret it to prove they had the language skills to vote. By the time Pena arrived at Bethune, he said, the line to vote was four abreast and a block long. People were giving up and going home. Pena told the guy to leave. They got into an argument. Shoving followed. Arizona politics can be raw. Finally, Pena said, the guy raised a fist as if he was fixing to throw a punch.
https://web.archive.org/web/20100522121736/http://www.commondreams.org/views/120200-101.htm
-
“Not qualified to vote”: Sydney Smith statement before Senate Judiciary Committee:
https://www.govinfo.gov/content/pkg/GPO-CHRG-REHNQUIST/pdf/GPO-CHRG-REHNQUIST-4-42-1.pdf
Four rebut testimony of Rehnquist on challenging of voters in ‘60s by Stuart Taylor, New York Times, August 2, 1986
https://www.nytimes.com/1986/08/02/us/4-rebut-testimony-of-rehnquist-on-challenging-of-voters-in-60-s.html
James Broshanan: testimony before Senate Judiciary Committee
https://www.govinfo.gov/content/pkg/GPO-CHRG-REHNQUIST/pdf/GPO-CHRG-REHNQUIST-4-5-1.pdf
Broshanan testimony on C-SPAN at 3:33
https://www.c-span.org/video/?150275-1/chief-justice-confirmation-hearing
Four witnesses dispute word of Rehnquist by Ronald J. Ostrow and James Gerstenzang. Los Angeles Times, August 2, 1986
https://www.latimes.com/archives/la-xpm-1986-08-02-mn-973-story.html
Rehnquist memo on Brown v Board of Education: https://www.govinfo.gov/content/pkg/GPO-CHRG-REHNQUIST/pdf/GPO-CHRG-REHNQUIST-4-16-6.pdf
Newsweek’s original December 6, 1971 article does not appear online, but the New York Times’s contemporaneous coverage of it does. Rehnquist ‘52 schools memo reported, by Fred P. Graham, New York Times, Dec. 6, 1971
https://www.nytimes.com/1971/12/06/archives/rehnquist-52-schools-memo-reported.html
Rehnquist’s memo concludes that:
“In these cases now before the Court, the Court is, as Davis suggested, being asked to read its own sociological views into the Constitution. Urging a view palpably at variance with precedent and probably with legislative hsitory, appellants seek to convince the Court of the moral wrongness of the treatment they are receiving. I would suggest that this is a question the Court need never reach; for regardless of the Justice’s individual views on the merits of segregation, it quite clearly is not one of those extreme cases which commands intervention from one of any conviction. If this Court, because its members individually are “liberal” and dislike segregation, now chooses to strike it down, it differs from the McReynolds court only in the kinds of litigants it favors and the kinds of special claims it protects. To those who would argue that “personal” rights are more sacrosanct than “property” rights, the short answer is that the Constitution makes no such distinction. To the argument by Thurgood, not John, Marshall that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are. One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind – whether those of business, slaveholders, or Jehovah’s Witnesses—have all met the same fate. One by one the cases establishing such rights have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example, it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men. I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my “liberal” colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed. If the Fourteenth Amendment did not enact Spencer’s Social Statics, it just as surely did not enact Myrdahl’s American Dilemna.”
Memorandum from William H. Rehnquist to Justice Robert H. Jackson, “A Random Thought on the Segregation Cases,” Robert Houghwout Jackson Papers, Library of Congress, Manuscript Division, Box 184, Folder 5, reprinted in Nomination of Justice William Hubbs Rehnquist: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 314 (1986)
Snyder notes that “The scholarly focus on Rehnquist’s memo gravitated toward its penultimate and most inflammatory sentence endorsing the rightness and reaffirmation of Plessy. But the last sentence alluding again to Holmes’s Lochner dissent is more central to Rehnquist’s argument: the Justices should refrain from reading their personal views into the Fourteenth Amendment, in this case the Equal Protection Clause, and defer to majority rule on the issue of school segregation.” Brad Snyder, Rehnquist’s Plessy Memo 69 OHIO ST. L.J. 873, 873–76 (2008).
Snyder later discovered a fascinating contemporaneous letter from Rehnquist that casts further doubt on the justice’s insistence that he wrote the letter on Jackson’s behalf. (Jackson sided with the majority in Brown.) He argues that “Rehnquist's 1955 letter represents his disappointment with Brown and the beginning of his outspoken criticism of the Warren Court. The letter, this Essay contends, says less about how Rehnquist felt about Jackson and more about Rehnquist's disappointment over his Justice's role in the most important Supreme Court decision of the twentieth century.”
Snyder, Brad and Barrett, John Q., Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts on Justice Jackson and Brown (March 15, 2012). Boston College Law Review, Vol. 53, No. 631, 2012, Univ. of Wisconsin Legal Studies Research Paper No. 1192, St. John's Legal Studies Research Paper No. 2023269, Available at SSRN: https://ssrn.com/abstract=2023269
“A conservative looking for a conservative ideology”: Give Us The Ballot, by Ari Berman, FSG, 2015
“15x20 room, “friends forever”: Give Us The Ballot, by Ari Berman, FSG, 2015
Roberts best man: Roberts spouse juggles job, kids. Orlando Sentinel, September 18, 1985
https://www.orlandosentinel.com/2005/09/18/roberts-spouse-juggles-job-kids-2/
Colson, according to Washington Post, connects: How Amy Coney Barrett played a role in Bush v. Gore — and helped the Republican Party defend mail ballots by Beth Reinhard and Tom Hamburger, Washington Post, October 10, 2020
https://www.washingtonpost.com/politics/amy-coney-barrett-bush-gore/2020/10/10/594641b8-09e3-11eb-991c-be6ead8c4018_story.html
Confirmation Path May Run Through Florida by Peter Wallsten, Los Angeles Times, July 21, 2005
https://www.latimes.com/archives/la-xpm-2005-jul-21-na-recount21-story.html
A federalist society before the Federalist Society: Give Us The Ballot, by Ari Berman, FSG, 2015
Lone Ranger figurine: Among others, Give Us The Ballot, by Ari Berman, FSG, 2015
Roberts discusses the figurine on an episode of the Supreme Court series on PBS titled the Rehnquist Revolution.
Edwin Meese: Bill Rehnquist felt that the states should have primary authority in those matters that were most affecting people in their day-to-day lives. They knew how to handle their own lives and they didn't need a lot of supervision from the Court.
Narrator: Less than ten years after the epic fight to end segregation, the idea that states could be trusted to be fair was not a widely held view on the court. Rehnquist ended up on the short end of so many 8 to 1 votes the clerks started calling him the Lone Ranger.
John Roberts: Got to the point that a group of his early law clerks gave him a little Lone Ranger doll that he proudly displayed on the mantle in his, in his chambers. But Justice Rehnquist came to the Court with a well-defined legal philosophy. And he was gonna articulate it.
https://www.thirteen.org/wnet/supremecourt/about/pop_transcript4.html
Long walks: Roberts once a high-court clerk to Rehnquist, Associated Press, September 5, 2005, “Two men — one middle-aged, the other in his twenties — barely drew any notice as they strolled the streets around the Supreme Court, deep in discussion about the law. One was William Rehnquist, a justice on the nation’s highest court. The other was his clerk, John Roberts. Rehnquist, as was his practice in earlier days, preferred walking and talking to understand the details of a case, simply stepping out the front door of the court for an extended saunter and thoughtful conversation with one of his three clerks.”
https://www.nbcnews.com/id/wbna9216359
John was certainly in sync with his justice: As clerk for Rehnquist, nominee stood out for conservative rigor, By Adam Liptak and Todd S. Purdum, New York Times, July 31, 2005
https://www.nytimes.com/2005/07/31/politics/politicsspecial1/as-clerk-for-rehnquist-nominee-stood-out-for.html
“Ideological edge”: Smith to Berman, Give Us The Ballot, by Ari Berman, FSG, 2015
“Repudiates precedent”: Owen Fiss and Charles Krauthammer, The Rehnquist Court, The New Republic, March 10, 1982
Lazarus remembers: Court Nominee's Life Is Rooted in Faith and Respect for Law by Todd S. Purdum, Jodi Wilgoren and Pam Belluck, New York Times, July 21, 2005
https://www.nytimes.com/2005/07/21/politics/court-nominees-life-is-rooted-in-faith-and-respect-for-law.html
“While I suspect you may be displeased”: Letter from John G. Roberts to Henry J. Friendly (Feb. 3, 1983) (on file with Friendly Papers, supra note 72, Box 220, Folder 220-4), cited in Snyder, Brad, The Judicial Genealogy (and Mythology) of John Roberts: Clerkships from Gray to Brandeis to Friendly to Roberts (December 8, 2010). Ohio State Law Journal, Vol. 71, No. 1149, 2010, Univ. of Wisconsin Legal Studies Research Paper No. 1146
https://ssrn.com/abstract=1722362 or http://dx.doi.org/10.2139/ssrn.1722362
-
Chapter Five
Voting rights advocates had ample reason to be worried: The Voting Rights Extension Act of 1982 by John Herbert Roper, Phylon, Vol. 45, No. 3 (3rd Qtr., 1984), pp. 188-196
https://doi.org/10.2307/274403
Bending Toward Justice by Gary May, Perseus Books, 2013
Ballot Blocked by Jesse Rhodes, Stanford University Press, 2017
Give Us The Ballot by Ari Berman, FSG, 2016
The Rise and Fall of the Voting Rights Act by Charles S. Bullock III, Ronald Keith Gaddie and Justin J. Wert, University of Oklahoma Press, 2016
Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
“The biggest step backward in civil rights”: The New York Times, April 23, 1980,
The New York Times quoted Blacksher that the decision represented “the biggest step backwards in civil rights to come from the Nixon Court.” N. Y. Times, Apr. 23, 1980, p. A22.
https://timesmachine.nytimes.com/timesmachine/1980/04/23/113940346.pdf?pdf_redirect=true&ip=0
South Carolina enforcement case dropped entirely: That case was McCain v. Lybrand. As John C. Ruoff and Herbert E. Buhl detail, “Edgefield County, home to long-time U.S. Senator J. Strom Thurmond, was the focus of protracted litigation in an attempt to open the electoral system to the county’s African-American citizens. In litigation begun in 1974, private plaintiffs challenged the county’s at-large system of electing the county council. They were initially successful in their constitutional claim of vote discrimination as District Court Judge Robert Chapman found “bloc voting by the whites on a scale that this court has never before observed.” However, after the Supreme Court’s decision in City of Mobile v. Bolden, requiring plaintiffs to show a racially discriminatory purpose in adopting or maintaining a discriminatory election system, Judge Chapman vacated his own ruling.” Voting Rights in South Carolina: 1982-2006 John C. Ruoff and Herbert E. Buhl.
https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/issue_17/05_%20South_Carolina_Macro.pdf
Harry Blackmun … “first needed to account for it”: Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) Blackmun dissent available at https://supreme.justia.com/cases/federal/us/438/265/
The Disease as Cure: Antonin Scalia, "The Disease as Cure: 'In Order to Get beyond Racism, We Must First Take Account of Race'," 1979 Washington University Law Quarterly 147 (1979).
https://chicagounbound.uchicago.edu/journal_articles/7989/#:~:text=Antonin%20Scalia%2C%20%22The%20Disease%20as,Law%20Quarterly%20147%20(1979).
Scalia’s early writing is reminiscent of Roberts several decades later in two decisions about school admission. In the first, Parents Involved v Seattle School District Number 1, from 2007, Roberts put an end to practices in Seattle and Louisville which provided minority students a leg-up in cases where all else between applicants looked equal. “The way to stop discrimination on the basis of race,” Roberts wrote, “is to stop discriminating on the basis of race.” Roberts returned to those words in his decision in favor of Edward Blum’s Students for Fair Admissions v Harvard, which stopped affirmative action for college admissions. “Eliminating racial discrimination,” he wrote, “means elmininating all of it.” Roberts supported his vision of a color-blind constitution with references to Brown v Board of Education, arguing that the 1950s court had then decided that “The time for making distinctions based on race had passed.” As Jamelle Bouie then observed in The New York Times, Roberts had an interesting way of separating race from racism. “The issue here is that Brown v. Board of Education was not about states making distinctions based on race. The question before the court was whether state governments could use racial classifications to separate Black Americans from white Americans in order to deny rights to the former and extend privileges to the latter. The question, in other words, was whether racism was a legitimate state interest.” The John Roberts Two-Step by Jamelle Bouie, New York Times, July 8, 2023
https://www.nytimes.com/2023/07/08/opinion/john-roberts-supreme-court-racism.html
The way to stop discriminating: Roberts took credit for this line, and many conservative legal organizations called it his finest moment to date. Yet as Linda Greenhouse writes in Justice On The Brink, it was borrowed without attribution from Carlos Bea, a federal judge who decided a version of the case in the lower courts. Justice on the Brink by Linda Greenhouse, Random House, 2022, p. 130.
The new president … opposed the Civil Rights Act, the Voting Rights Act:
Old Times There Are Not Forgotten by Sydney Blumenthal, Salon, November 8, 2003
https://www.salon.com/2003/11/08/apologies/
“If an individual wants to discriminate against Negroes or others … he has a right to do so”: Reagan quoted in, among others, Old Times There Are Not Forgotten by Sydney Blumenthal, Salon, November 8, 2003
https://www.salon.com/2003/11/08/apologies/
“Humiliating to the South”: Old Times There Are Not Forgotten by Sydney Blumenthal, Salon, November 8, 2003
https://www.salon.com/2003/11/08/apologies/
Neshoba County Fair: Reagan’s race legacy by William Raspberry, Washington Post, June 13, 2004
https://www.washingtonpost.com/wp-dyn/articles/A39345-2004Jun13.html
Old times there are not forgotten by Sydney Blumenthal, Salon, November 8, 2003
https://www.salon.com/2003/11/08/apologies/
Righting Reagan’s Wrongs by Bob Herbert, New York Times, November 13, 2007
https://www.nytimes.com/2007/11/13/opinion/13herbert.html
Reaganland by Rick Perlstein, Simon and Schuster, 2020
Give Us The Ballot by Ari Berman, FSG, 2016
“I believe in states rights”: Seven things about Ronald Reagan you won’t hear at the Reagan Library GOP debate by Jon Schwarz, the Intercept, September 16, 2015
https://theintercept.com/2015/09/16/seven-things-reagan-wont-mentioned-tonight-gops-debate
Dog whistling Dixie by David Greenberg, Slate, November 20, 2007
https://slate.com/news-and-politics/2007/11/what-reagan-meant-by-states-rights.html
Reagan’s race legacy by William Raspberry, Washington Post, June 13, 2004
https://www.washingtonpost.com/wp-dyn/articles/A39345-2004Jun13.html
“We were in real trouble”: Edwards quoted in Bending Toward Justice by Gary May, Perseus Books, 2013
“Initially not many people agreed”: The Voting Rights Extension Act of 1982 by John Herbert Roper, Phylon, Vol. 45, No. 3 (3rd Qtr., 1984), pp. 188-196
https://doi.org/10.2307/274403
Edwards and Rodino had the task: Bending Toward Justice by Gary May, Perseus Books, 2013
The Voting Rights Extension Act of 1982 by John Herbert Roper, Phylon, Vol. 45, No. 3 (3rd Qtr., 1984), pp. 188-196
https://doi.org/10.2307/274403
The Rise and Fall of the Voting Rights Act by Charles S. Bullock III, Ronald Keith Gaddie and Justin J. Wert, University of Oklahoma Press, 2016
Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
Activists wanted to modernize: Bending Toward Justice by Gary May, Perseus Books, 2013
The Voting Rights Extension Act of 1982 by John Herbert Roper, Phylon, Vol. 45, No. 3 (3rd Qtr., 1984), pp. 188-196
https://doi.org/10.2307/274403
The Rise and Fall of the Voting Rights Act by Charles S. Bullock III, Ronald Keith Gaddie and Justin J. Wert, University of Oklahoma Press, 2016
Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
-
Happy to reauthorize a neutered Act: Bending Toward Justice by Gary May, Perseus Books, 2013
The Voting Rights Extension Act of 1982 by John Herbert Roper, Phylon, Vol. 45, No. 3 (3rd Qtr., 1984), pp. 188-196
https://doi.org/10.2307/274403
Leadership Conference hires Ralph Neas: Bending Toward Justice by Gary May, Perseus Books, 2013
“I was zero for four”: Ralph Neas interview with the author
“It was John Roberts leading the charge”: Ralph Neas interview with the author
“Call to action”: Roberts’ letter to Starr available online via the National Archives
https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/031-resumes/folder031.pdf
Friendly and Rehnquist references: Available online via the National Archives
https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/031-resumes/folder031.pdf
Roberts’ clerkships and college awards: Included on Roberts’s attached resume, available through National Archives
https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/031-resumes/folder031.pdf
DOJ as intellectual headquarters to conservative legal movement: See Berman, Give Us The Ballot, as well as Teles, The Rise of the Conservative Legal Movement
“They hated everything we did”: Michael Carvin interview with the author
One of the go-to Supreme Court litigators: A Lawyer Taking Aim at the Health Care Act Gets a Supreme Court Rematch by Sheryl Gay Stolberg, New York Times, March 4, 2015
https://www.nytimes.com/2015/03/05/us/a-supreme-court-rematch-for-a-lawyer-targeting-the-health-care-act.html
“The band of brothers!”: Bruce Fein interview with the author
“An exciting time to be at the Department of Justice”: Roberts letter to Friendly cited by, among others (including Berman and Biskupic), Charles Lane in For Nominee John Roberts, Less Is More, NBC News, September 6, 2005
https://www.nbcnews.com/id/wbna9225090
This reappraisal had to do with race: Among others, Turning Back the Clock: The Reagan Administration and Civil Rights by Drew S. Days, Harvard Civil Rights-Civil Liberties Law Review, Vol. 19, 1984
https://openyls.law.yale.edu/bitstream/handle/20.500.13051/722/Turning_Back_the_Clock_The_Reagan_Administration_and_Civil_Rights.pdf?sequence=2
Reagan’s changes on rights are starting to have impact by John Herbers, New York Times, January 24, 1982
https://www.nytimes.com/1982/01/24/us/reagan-s-changes-rights-are-starting-have-impact-reagan-s-first-year-last-six.html
Affirmative action under Reagan by Chester E. Finn, Commentary, April 1982
https://www.commentary.org/articles/chester-finn/affirmative-action-under-reagan/
“What is an effects test except a runaround?”: Bruce Fein interview with the author
“Our argument was hardly a throwback to Jim Crow”: Bruce Fein interview with the author
“You shall not treat people differently”: Michael Carvin interview with the author“
“We were the only ones”: Bruce Fein interview with the author
“Don’t want to be called racist”: Michael Carvin interview with the author
“John’s been really good on voting rights stuff ever since because he gets the game”: Michael Carvin interview with the author
Baker, Nofziger and Deaver perfectly content not to pick a fight: Bending Toward Justice by Gary May, Perseus Books, 2013 and Ballot Blocked by Jesse Rhodes, Stanford University Press, 2017
“Courteous demeanor, conservative clothes and gray hair”: William French Smith dies at 73, Reagan’s first attorney general by Richard D. Lyons, New York Times, October 30, 1990
https://www.nytimes.com/1990/10/30/obituaries/william-french-smith-dies-at-73-reagan-s-first-attorney-general.html
Neas on Reynolds: Ralph Neas interview with the author
“Two people who are now on the Supreme Court”: Ralph Neas interview with the author
Reynolds defeated in Senate: As the Times observed, “In a vote widely regarded as a severe defeat for President Reagan and his civil rights policies, the Senate Judiciary Committee today rejected the nomination of William Bradford Reynolds to be Associate Attorney General. Senate committee rejects Reynolds for Justice post, by Robert Pear, New York Times, June 28, 1985
https://www.nytimes.com/1985/06/28/us/senate-committee-rejects-reynolds-for-justice-post.html
“Voting that was John’s fight. Always John’s fight”: Michael Carvin interview with the author
Leadership Conference strategy: Among others, Ralph Neas papers
Bending Toward Justice by Gary May, Perseus Books, 2013
Ballot Blocked by Jesse Rhodes, Stanford University Press, 2017
Give Us The Ballot by Ari Berman, FSG, 2016
The Rise and Fall of the Voting Rights Act by Charles S. Bullock III, Ronald Keith Gaddie and Justin J. Wert, University of Oklahoma Press, 2016
Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
Markman and Boyd: The history written by Boyd and Markman is indispensable. Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
Dig in in the House. Stall the White House: The Voting Rights Extension Act of 1982 by John Herbert Roper, Phylon, Vol. 45, No. 3 (3rd Qtr., 1984), pp. 188-196
https://doi.org/10.2307/274403
Bending Toward Justice by Gary May, Perseus Books, 2013
The Rise and Fall of the Voting Rights Act by Charles S. Bullock III, Ronald Keith Gaddie and Justin J. Wert, University of Oklahoma Press, 2016
Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
We were trying to buy time”: Ralph Neas interview with the author
Rodino bill: The Voting Rights Extension Act of 1982 by John Herbert Roper, Phylon, Vol. 45, No. 3 (3rd Qtr., 1984), pp. 188-196
https://doi.org/10.2307/274403
Bending Toward Justice by Gary May, Perseus Books, 2013
The Rise and Fall of the Voting Rights Act by Charles S. Bullock III, Ronald Keith Gaddie and Justin J. Wert, University of Oklahoma Press, 2016
Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
“We had to reverse Mobile,” Don Edwards quoted by Roper in oral history included in Roper’s papers at the University of North Carolina libraries
“Back of the bus”: Hyde quoted by May in Bending Toward Justice by Gary May, Perseus Books, 2013
Things had changed: Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
-
Bending Toward Justice by Gary May, Perseus Books, 2013
Austin and Montgomery hearings: Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
Bending Toward Justice by Gary May, Perseus Books, 2013
The Voting Rights Extension Act of 1982 by John Herbert Roper, Phylon, Vol. 45, No. 3 (3rd Qtr., 1984), pp. 188-196
https://doi.org/10.2307/274403
“It was like going back 100 years”: Don Edwards quoted by Roper in oral history included in Roper’s papers at the University of North Carolina libraries
“It’s still tough down there. … We didn’t get a white smile”: Don Edwards quoted by Roper in oral history included in Roper’s papers at the University of North Carolina libraries
Dr. Joe Reed testimony: Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
“If that persists and exists it is more than wrong”: Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
“I was wrong, and now I want to be right”: Hyde quoted by, among others, Bending Toward Justice by Gary May, Perseus Books, 2013
Hyde revises bill: Bending Toward Justice by Gary May, Perseus Books, 2013
“Wouldn’t answer our phone calls: As Don Edwards recalled it, "the Justice Department wouldn't answer our telephone calls, they refused to testify; about 80 career lawyers, people who had been filing their cases for 15 years almost had a revolt down there ... because Justice was not enforcing the law. The Senate refused to hold hearings." And there were talented, tough young congressmen in the Republican ranks opposed to extending the 1965 and 1975 provisions. "Tough, eloquent, great speakers, they won't give you nothin'," said Edwards. "Trent Lott [of Mississippi] is the toughest of that band; he's a tough son of a bitch, I'll tell you, and he won't give you an inch. The Texas [Republicans] are very tough, Virginia has [Thomas Jerome] Bliley, and Georgia, Newt Gingrich, a tough nut who won't give you tiddelly." The Voting Rights Extension Act of 1982 by John Herbert Roper, Phylon, Vol. 45, No. 3 (3rd Qtr., 1984), pp. 188-196
https://doi.org/10.2307/274403
“If you move quickly you may be able to broaden your constituency”: Hyde to Reagan from Bending Toward Justice by Gary May, Perseus Books, 2013, p 220
“Permit a barrier”: Reagan’s speech before the 1981 NAACP convention accessible through the Reagan Library
https://www.reaganlibrary.gov/archives/speech/remarks-denver-colorado-annual-convention-national-association-advancement-colored
House passes: U.S. House vote backs keeping key parts of 1965 voting act by Steven V. Roberts, New York Times, October 6, 1981
https://www.nytimes.com/1981/10/06/us/house-vote-backs-keeping-key-parts-of-1965-voting-act.html
$46,685: Biskupic, The Chief, p. 64
602 North Carolina: Roberts’ Personal qualifications statement in the Reagam Library archives
https://www.archives.gov/files/news/john-roberts/reagan-library-collections-2/RM-WhiteHouse-AlphaFile-JRoberts-Box71.pdf
Would claim 65 hours a week: Personal qualifications statement in the Reagan Library archives
https://www.archives.gov/files/news/john-roberts/reagan-library-collections-2/RM-WhiteHouse-AlphaFile-JRoberts-Box71.pdf
Roberts and O’Connor: Among others, Released papers show Roberts urging discretion, NPR, August 11, 2004
https://www.npr.org/2005/08/11/4796442/released-papers-show-roberts-urging-discretion
“Architect of it all”: Bruce Fein interview with the author
“The Justice Department was the only one”: Bruce Fein interview with the author
Roberts drafts memos, opeds, talking points: The complete set of Roberts papers released from the National Archives can be found here: https://www.archives.gov/news/john-roberts
“He was intimately involved in that”: Bruce Fein interview with the author
“Did not want to do that: The president “said he had previously thought the Voting Rights Act of 1965 should be extended to all states but has since learned ''from a number of people'' that such a move ''may not be a good solution, that it might make it so cumbersome as to not be effectively workable.'' ''I believe very strongly,'' he continued, ''in the right of everyone to vote and I know that there are efforts made to, and that have been made, to keep people from voting.'' May, Bending Toward Justice, and Reagan is said to shift on Voting Rights Act, UPI, August 6, 1981
https://www.nytimes.com/1981/08/06/us/reagan-is-said-to-shift-on-voting-rights-act.html
Reagan tells Washington Star he would back 10 years and oppose national preclearance: Reagan is said to shift on Voting Rights Act, UPI, August 6, 1981
https://www.nytimes.com/1981/08/06/us/reagan-is-said-to-shift-on-voting-rights-act.html
Reagan would support whatever Congress wanted to do: Bending Toward Justice by Gary May, Perseus Books, 2013
Smith races up the street: May, Bending Toward Justice.
Times would need to rewrite its story: As the NYT reported, “Administration officials said that Mr. Reagan's statement had been made public after several hours of backstage maneuvering in which Attorney General Smith and other conservatives debated the details with political moderates on the White House staff.” Reagan backs Voting Rights Act but wants to ease requirements, New York Times, November 7, 1981
https://www.nytimes.com/1981/11/07/us/reagan-backs-voting-rights-act-but-wants-to-ease-requirements.html
“Last-minute skirmishing”: Reagan backs Voting Rights Act but wants to ease requirements, New York Times, November 7, 1981
https://www.nytimes.com/1981/11/07/us/reagan-backs-voting-rights-act-but-wants-to-ease-requirements.html
“New and untested”:The president’s statement – “I believe that the act should retain the 'intent' test under existing law, rather than changing to a new and untested 'effects' standard,” hewed tightly to the Roberts talking points. he said. stays with roberts talking points. https://www.nytimes.com/1981/11/07/us/reagan-backs-voting-rights-act-but-wants-to-ease-requirements.html
“The intent was a useful thing”: Transcript of Reagan’s December 17, 1981 press conference available at https://www.reaganlibrary.gov/archives/speech/presidents-new-conference-december-17-1981
“Actual quota system”: Transcript of Reagan’s December 17, 1981 press conference available at https://www.reaganlibrary.gov/archives/speech/presidents-new-conference-december-17-1981
Roberts December 21 memo, Why Section Two Should Remain Unchanged: Roberts writes to the attorney general that his boss, Brad Reynolds, not CCd on this memo, “has expressed some reservations about circulating any written statement on this question to the Hill, for fear that the statement would end up in the press and be subject to attack. My own view is that something must be done to educate the Senators on the seriousness of this problem, and that written statements should be avoided only. if a thorough campaign of meetings is undertaken.” Roberts memo to Smith, December 22, 1981, pp 9-13.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/030-black-binder1/folder030.pdf
-
Chapter Six
“Pernicious”: Roberts urged keeping presidential files secret, Baltimore Sun, August 16, 2005
https://www.baltimoresun.com/2005/08/16/roberts-urged-keeping-presidential-files-secret-2/
“Any internal White House deliberative document they want to see”: Files From Roberts’ Reagan Years Are Released by David G. Savage and Henry Weinstein, August 16, 2005
https://www.latimes.com/archives/la-xpm-2005-aug-16-na-roberts16-story.html
“Twelve years is a brief lifetime”: The Chief by Joan Biskupic, Basic Books, 2019
The Roberts papers: The National Archives and the Reagan Library released many sets of Roberts’s papers covering his years at DOJ and then inside the Reagan White House. The relevant voting rights files are all linked and available here:
https://www.archives.gov/news/john-roberts
His memos were covered at the time of his confirmation hearings, for example, in Roberts helped to shape 80s civil rights debate by Robin Toner and Jonathan D. Glater, New York Times, August 4, 2005
https://www.nytimes.com/2005/08/04/us/roberts-helped-to-shape-80s-civil-rights-debate.html
Roberts’ iffy support for voting rights by Richard L. Hasen, Los Angeles Times, August 3, 2005
https://www.latimes.com/archives/la-xpm-2005-aug-03-oe-hasen3-story.html
Ari Berman covered them in his tremendous book Give Us The Ballot, FSG, 2016
They have been discussed in law review articles including Adam Bolotin, Out of Touch: Shelby v. Holder and the Callous Effects of Chief Justice Roberts’s Equal State Sovereignty, 49 J. Marshall L. Rev. 751 (2016)
https://repository.law.uic.edu/cgi/viewcontent.cgi?article=2590&context=lawreview
And two great Supreme Court observers also went deep, Linda Greenhouse in John Roberts’ Long Game, The Atlantic, September 20, 2022
https://www.theatlantic.com/magazine/archive/2022/10/john-roberts-supreme-court-voting-rights-act/671239/
Ian Millhiser, Chief Justice Roberts’s lifelong crusade against voting rights, explained, Vox, September 18, 2020
https://www.vox.com/21211880/supreme-court-chief-justice-john-roberts-voting-rights-act-election-2020
Vernon Jordan: Diluting voting rights by Vernon Jordan, The New York Times, November 16, 1981
https://www.nytimes.com/1981/11/16/opinion/diluting-voting-rights.html
“Political mistake”: Diluting voting rights by Vernon Jordan, The New York Times, November 16, 1981
https://www.nytimes.com/1981/11/16/opinion/diluting-voting-rights.html
“Don’t wallpaper their offices”: Diluting voting rights by Vernon Jordan, The New York Times, November 16, 1981
https://www.nytimes.com/1981/11/16/opinion/diluting-voting-rights.html
“Is a sham”: Diluting voting rights by Vernon Jordan, The New York Times, November 16, 1981
https://www.nytimes.com/1981/11/16/opinion/diluting-voting-rights.html
DOJ into a tizzy: Roberts refers to the discussions on page 10.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
Roberts response: On November 17, Roberts sent a memo to the attorney general, Edward C. Schmults, Reynolds, Stan Morris, Fein and Starr, among others. “It was suggested that we consider responding to Vernon Jordan's November 16 piece in the N.Y. Times criticizing the President for his "sham" endorsement of the Voting Rights Act. I have taken a stab at a first draft if anyone is interested in appropriating all or parts of it. memo the next day if anyone is interested in appropriating all or parts.” Begins page 10.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
“Radical change”: Page 11.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
“If it isn’t broken”: Page 11.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
“The only ones who could be disappointed”: Page 12
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
Thurmond filibuster: Thurmond held the record for the longest filibuster in Senate history for his 24 hour and 18 minute marathon against the Civil Rights Act of 1957. The Civil Rights Act created the civil rights division of the Justice Department where Roberts was now mounting his crusade on behalf of the intent standard. It was the first civil rights legislation passed by Congress in nearly 90 years. Thurmond was then less than a decade removed from his 1948 Dixiecrat run for the White House in which he proclaimed “There’s not enough troops in the Army to force the Southern people to break down segregation and admit the n— race into our theaters, into our swimming pools, into our homes and into our churches.” True to form, he insisted the 1957 bill was both unnecessary and a violation of states’ rights. “This is bad proposed legislation, which never should have been introduced, and which never should have been approved by the Senate,” he said, nearing the conclusion of his filibuster. “I hope the Senate will see fit to kill it,” he urged, with a chilling emphasis on the word kill. Thurmond added, in conclusion, “I expect to vote against the bill”---an anticlimactic flourish that, according to the Congressional Record, senators greeted with “a great roar of laughter” and extended applause. The second longest filibuster in Senate history followed in 1964, when Southern senators attempted to block an updated and expanded Civil Rights Act.
Thurmond’s filibuster from the Congressional Record: https://www.senate.gov/artandhistory/history/resources/pdf/Thurmond_filibuster_1957.pdf
The racist filibuster we can’t afford to forget, The Takeaway, WNYC
https://www.wnycstudios.org/podcasts/takeaway/segments/racist-filibuster-we-cant-afford-forget
Felt confident that they could engineer a host of obstructionist: Bending Toward Justice by Gary May, Perseus Books, 2013, p 224.
Kennedy and Mathias, filibuster-proof 61: Bending Toiward Justice by Gary May, Duke University Press, 2015
Totenberg to Thurmond: Ralph Neas interview with the author, also included in Berman, Give Us The Ballot, among others.
“Do not be fooled by the House vote or the 61 Senate sponsors”: Memorandum from John Roberts, to William French Smith, January 26, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0372/doc056.pdf
“Many members of the House did not know what they were doing”: Memorandum from John Roberts, to William French Smith, January 26, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0372/doc056.pdf
“Once the senators are educated on the differences”: Memorandum from John Roberts, to William French Smith, January 26, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0372/doc056.pdf
Roberts remained focused … sent Smith six pages of draft questions and answers: John Roberts memo, Voting Rights Act Testimony: Questions & Answers, January 21, 1982. Begins page 20.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
No improvement to the VRA: John Roberts memo, Voting Rights Act Testimony: Questions & Answers, January 21, 1982. Pages 21-26.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
-
Should push back firmly: John Roberts memo, Voting Rights Act Testimony: Questions & Answers, January 21, 1982. Pages 21-26.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
“It would seem odd”: John Roberts memo, Voting Rights Act Testimony: Questions & Answers, January 21, 1982. Page 22.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
“In reviewing the VRA last summer”: John Roberts memo, Voting Rights Act Testimony: Questions & Answers, January 21, 1982. Page 23.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
“If it isnt broken, don’t fix it”: John Roberts memo, Voting Rights Act Testimony: Questions & Answers, January 21, 1982. Page 23.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
Dubious paraphrases: Roberts writes for Smith “I met personally with scores of civil rights leaders as well as state officials in order to obtain their views. The one theme that emerged from these discussions was clear: the Act has been the most successful civil rights legislation ever enacted, and it should be extended unchanged.” Ralph Neas says this is absolutely not what any civil rights leader said, and emphasized that the entire voting rights community was unified behind through the Leadership Conference to have reauthorization fix the Bolden decision. Ralph Neas interview with the author.
“In essence it would establish a quota system for electoral politics”: John Roberts memo, Voting Rights Act Testimony: Questions & Answers, January 21, 1982. Page 24.
https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
Five days later: Memorandum from John Roberts, to William French Smith, January 26, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0372/doc056.pdf
“Once and for all”: Memorandum from John Roberts, to William French Smith, January 26, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0372/doc056.pdf
“I recommend taking a very positive and aggressive stance”: Memorandum from John Roberts, to William French Smith, January 26, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0372/doc056.pdf
“The President’s position is politically saleable, since the position is a positive one”: Memorandum from John Roberts, to William French Smith, January 26, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0372/doc056.pdf
“Just as we oppose quotas in employment and education, so too we oppose them in elections”: Memorandum from John Roberts, to William French Smith, January 26, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0372/doc056.pdf
“Very important that the fight be won”: Roberts added, boldly, that “the President is fully committed to this effort. His staff should be as well.” Memorandum from John Roberts, to William French Smith, January 26, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0372/doc056.pdf
That day he sent Smith yet another memo: “The Post is wrong on the law,” Roberts complained. Memorandum: Today’s Post editorial. To the attorney general. January 26, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/030-black-binder1/folder030.pdf#page=3
Personal role in directing DOJ’s communications strategy: On March 1, Roberts sent his bosses an op-ed localized for Phoenix and suggested a series of opeds with one paragraph that could be changed depending on the city in which it was submitted. If the attorney general’s byline ran on a national piece, he suggested his ghostwritten piece appear under the name of Reynolds or another assistant attorney general, Robert McConnell. Roberts memo to Smith, Reynolds, Starr, Tex Lazar, and Robert McConnell, Regional op-ed piece on consequences of an effects test in section 2 of the Voting Rights Act, March 1, 1982. Page 7. https://www.archives.gov/files/news/john-roberts/accession-60-88-0495/040-civil-rights-division/folder040.pdf
Extensive handwritten edits: Among Roberts’s edits is one that reveals his ignorance to the long history and not-so-secret purpose of at-large elections. Roberts adds a note to call them “the typical form of government in this country.” Roberts memo to Brad Reynolds, February 8, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0172/001-Box14-Folder387.pdf
“I do not agree with the Attorney General”: Roberts writes that “I do not agree with the Attorney General that it is necessary to talk down to the audience we hope to reach any more than we already did in the previous drafts.” It’s a bold statement of disagreement with the boss, and a suggestion of how Roberts understands he has the authority to drive the policy. Roberts memo to Brad Reynolds, February 8, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0172/001-Box14-Folder387.pdf
“The frequent writings in this area by our adversaries have gone unanswered for too long”: Roberts memo to Brad Reynolds, February 8, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0172/001-Box14-Folder387.pdf
“Too much progress has been made for Congress now to countenance such a backward step”: Roberts memo to Brad Reynolds, February 8, 1982
https://www.archives.gov/files/news/john-roberts/accession-60-89-0172/001-Box14-Folder387.pdf
Roberts memo, “Why section 2 of the Voting Rights Act should be retained unchanged”: February 23, 1982. Begins on page 12 of file released by National Archives
https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/016-voting-rights/folder016.pdf
Possibilities to distribute to senators, John: Page 27 of file released by National Archives
https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/016-voting-rights/folder016.pdf
No detail too small: “I have suggested minor changes in both the new piece on the pre-Mobile law and the old piece, “Why Section 2 of the Voting Rights Should Be Retained Unchanged,” Roberts wrote Reynolds on February 23, 1982. “Copies with suggested changes are attached as is a set of supportive letters to the editors, etc.” Roberts memo to Reynolds, February 23, 1982. Page 12
https://www.archives.gov/files/news/john-roberts/accession-60-88-0498/016-voting-rights/folder016.pdf
“Considerations of race and ethnicity intrude into each and every policy decision”: Hatch quoted in Thomas M. Boyd and Stephen J. Markman, The 1982 Amendments To The Voting Rights Act: A Legislative History, 40 Wash. & Lee L. Rev. 1347 (1983).
https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=2674&context=wlulr
“It was a no-brainer”: Interview with Sen. Robert Dole
Bipartisan compromise: Among others, Bending Toward Justice by Gary May, Perseus Books, 2013
“I didn’t always agree with Dole”: Sen. Lowell Weicker interview with the author
“He can count Black votes”: March 1983 interview between Rep. Edwards and historian John Herbert Roper, contained within Roper’s files at the University of North Carolina libraries
“As I’ve said before”: Remarks on Signing the Voting Rights Act Amendments of 1982, June 29, 1982, Ronald Reagan Presidential Library
https://www.reaganlibrary.gov/archives/speech/remarks-signing-voting-rights-act-amendments-1982#
“They eventually caved”: Michael Carvin interview with the author
“Smith, Brad, John, we lost”: Bruce Fein interview with the author
“John, Scalia, racist? Are you kidding?”: Bruce Fein interview with the author
“If the court doesn’t end it, then it will never end”: MIchael Carvin interview with the author
-
Chapter Seven
1. Chapter seven: Very grateful to Michael Kruse’s The weekend at Yale that changed American politics, Politico, Sept./Oct. 2019, Jonathan Riehl’s exceptionally reported The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It and Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021, and Steven M. Teles’s Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. for important background throughout this chapter
Unemployment approached 10 percent: Unemployment continued to rise in 1982 as recession deepened, by Michael A. Urquhart and Marillyn A. Henson, Bureau of Labor Statistics
https://www.bls.gov/opub/mlr/1983/02/art1full.pdf
Reagan’s approval ratings: Ronald Reagan Public, Approval, Gallup data collected by the American Presidency Project
https://www.presidency.ucsb.edu/statistics/data/ronald-reagan-public-approval
Law schools: still very liberal: The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
There was no forum at the law schools: Otis interview with the author, and similar sentiment in Riehl, Jonathan. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007. https://doi.org/10.17615/32hd-y571
Outnumbered and surrounded: As Kruse notes in Politico, “The law schools were exceedingly one-sided,” McConnell, the Stanford law professor, told me. Being a conservative then at a college or a law school, Scalia later said to biographer Joan Biskupic, made one feel “isolated, lonely … like a weirdo.”” The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
Met at Yale Political Union: The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
Calabresi, whose uncle: The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
Riehl, Jonathan. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007. https://doi.org/10.17615/32hd-y571
Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021
https://www.pushkin.fm/audiobooks/takeover-how-a-conservative-student-club-captured-the-supreme-court
Man on the right by Geoffrey Johnson, Chicago magazine, June 26, 2007
https://www.chicagomag.com/chicago-magazine/november-2005/man-on-the-right/
Debating the subtle sway of the Federalist Society by Jason DeParle, New York Times, August 1, 2005
https://www.nytimes.com/2005/08/01/politics/politicsspecial1/debating-the-subtle-sway-of-the-federalist.html
Conservative royalty: What would Frank say? By Neal B. Freeman, National Review, August 28, 2021
https://www.nationalreview.com/2021/08/what-would-frank-say/
A conversation with the Federalist Society’s Eugene B. Meyer by Michael E. Hartmann and Daniel P. Schmidt, The Giving Review, March 9, 2021
https://thegivingreview.com/a-conversation-with-the-federalist-societys-eugene-b-meyer-part-1-of-2/
Frank Meyer, founding Fuser by Matthew Continetti, National Review, November 2023
https://www.nationalreview.com/magazine/2023/11/frank-meyer-founding-fuser/
The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
Riehl, Jonathan. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007. https://doi.org/10.17615/32hd-y571
Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021
https://www.pushkin.fm/audiobooks/takeover-how-a-conservative-student-club-captured-the-supreme-court
Summer after graduation living together: Riehl, Jonathan. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007. https://doi.org/10.17615/32hd-y571
The day after: As Toobin writes, “The mood in the room was one of bewilderment and hurt. At the end, the teacher asked for a show of hands among the ninety first-year students before him. How many had voted for Carter and how many for Reagan? Only Calabresi and one other student had supported the Republican.” Excerpt: How conservatives won the court back, by Jeffrey Toobin, CNN, October 1, 2007
https://www.cnn.com/2007/US/law/10/01/toobin.excerpt/index.html
“A good chunk of the class would hiss”: Lawson quoted from Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021
https://www.pushkin.fm/audiobooks/takeover-how-a-conservative-student-club-captured-the-supreme-court
A club where they could discuss these ideas: The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
Riehl, Jonathan. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007. https://doi.org/10.17615/32hd-y571
Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021
https://www.pushkin.fm/audiobooks/takeover-how-a-conservative-student-club-captured-the-supreme-court
They planned a weekend at Yale: The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
Riehl, Jonathan. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007. https://doi.org/10.17615/32hd-y571
Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021
https://www.pushkin.fm/audiobooks/takeover-how-a-conservative-student-club-captured-the-supreme-court
15. Strongly dominated by a form of orthodox liberal ideology: The FedSoc founders and others have told a similar story about the founding in many early interviews, including:
The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
-
15. (cont’d) Riehl, Jonathan. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007. https://doi.org/10.17615/32hd-y571
Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021
https://www.pushkin.fm/audiobooks/takeover-how-a-conservative-student-club-captured-the-supreme-court
But also, High Society by Kate O’Beirne, National Review, July 2005
https://www.nationalreview.com/2005/07/high-society-kate-obeirne/
Federalist Society quickly comes of age by Al Kamen, Washington Post, February 1, 1987
https://www.washingtonpost.com/archive/politics/1987/02/01/federalist-society-quickly-comes-of-age/0ba797be-99bd-4bb8-adb6-caa65a0247a5/
How the Federalist Society Conquered the American Legal System by Peter Shamshiri, Rhiannon Hamam, Michael Liroff, Balls and Strikes, February 13, 2024
https://ballsandstrikes.org/qa/how-the-federalist-society-conquered-the-american-legal-system-5-4-podcast-fedsoc-amanda-hollis-brusky/
The Federalist Society: How conservatives took the law back from liberals by Michael Avery and Danielle McLaughlin. Nashville, TN: Vanderbilt University Press, 2013.
16. Mission statement: “A Symposium on Federalism”: A Symposium on Federalism: Legal and Political Ramifications : Yale Law School, April 23-25, 1982, Harvard Society for Law and Public Policy, 1982
https://books.google.com/books/about/A_Symposium_on_Federalism.html?id=-4xDAQAAIAAJ
Also, The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
Riehl, Jonathan. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007. https://doi.org/10.17615/32hd-y571
Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021
https://www.pushkin.fm/audiobooks/takeover-how-a-conservative-student-club-captured-the-supreme-court
Federalist Society founding principles:
https://fedsoc.org/about-us
“Don’t make up crap”: Lawson quoted from Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021
https://www.pushkin.fm/audiobooks/takeover-how-a-conservative-student-club-captured-the-supreme-court
National Review publicizes it: The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
Institute for Economic Affairs: Among others, The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
“I think this will be a lot of fun”: Liberman letter to Bork cited by Kruse in The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
“A vision for a broad conservative counter-elite”: Amanda Hollis Brusky interview with the author
“Attracted the kind of patrons”: Amanda Hollis Brusky interview with the author
Books biggest classroom at Yale Law: The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
New York Times reporter wrote with astonishment: Yale is a host to two meetings about politics, by Marcia Chambers, New York Times, May 2, 1982
https://www.nytimes.com/1982/05/02/nyregion/yale-is-a-host-to-2-meetings-about-politics.html
Lawson told Feldman: Lawson quoted from Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021
https://www.pushkin.fm/audiobooks/takeover-how-a-conservative-student-club-captured-the-supreme-court
Slept on floors: Interviews with the author, and also, among others, Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021
https://www.pushkin.fm/audiobooks/takeover-how-a-conservative-student-club-captured-the-supreme-court
The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
Olson made a bold prediction: The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
Bork at FedSoc: The weekend at Yale that changed American politics by Michael Kruse, Politico, September/October 2018
https://www.politico.com/magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-219608/
Blackwell at FedSoc: Speech provided to the author by Morton Blackwell
Blackwell’s counsel: Morton Blackwell interview with the author
“An outlet to publish”: Amanda Hollis-Brusky interview with the author
The vibe was really one of excitement: McConnell quoted from Takeover: How a conservative student club captured the Supreme Court, by Noah Feldman and Lidia Jean Kott, Pushkin Industries, 2021
https://www.pushkin.fm/audiobooks/takeover-how-a-conservative-student-club-captured-the-supreme-court
-
34. “It was very lonely”: Edwin Meese interview with the author
“That meant changing ideas”: Edwin Meese interview with the author
“That’s their pipeline”: Bruce Bartlett interview with the author
“That’s what the Federalist Society has done”: Judge Luttig interview with the author
The signature incubator: The defining piece on this, which this discussion relies on deeply and also encouraged additional interviews, is Steven M. Teles’s essential Transformative Bureaucracy. Teles SM. Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. Studies in American Political Development. 2009;23(1):61-83. doi:10.1017/S0898588X09000030
https://www.cambridge.org/core/journals/studies-in-american-political-development/article/transformative-bureaucracy-reagans-lawyers-and-the-dynamics-of-political-investment/629E508D14FAABFD386512801B460B89
Transformative Bureaucracy: Teles SM. Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. Studies in American Political Development. 2009;23(1):61-83. doi:10.1017/S0898588X09000030
https://www.cambridge.org/core/journals/studies-in-american-political-development/article/transformative-bureaucracy-reagans-lawyers-and-the-dynamics-of-political-investment/629E508D14FAABFD386512801B460B89
Patrick Gallagher article: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
A bit like a conservative think tank: Calabresi to Hollis-Brusky in Amanda Hollis-Brusky, Helping Ideas Have Consequences: Political and Intellectual Investment in the Unitary Executive Theory, 1981-2000, 89 Denv. U. L. Rev. 197 (2011)
https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1243&context=dlr
Young conservatives poured into DOJ: See Teles’s The Rise of the Conservative Legal Movement, Hollis Brusky’s Ideas With Consequences, Riehl’s Riehl, Jonathan. The Federalist Society and Movement Conservatism, among others
Staffing a revolution wasn’t easy: See Ideas With Consequences by Amanda Hollis Brusky and Teles, “Transformative Democracy,” among others
Created a career pipeline: Teles, “Transformative Democracy,” and Riehl, The Federalist Society and Movememnt Conservatism, among others
“Best damn idea that had come aling in 20 years”: Reynolds to Jonathan Riehl in Riehl, Jonathan. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007.
https://doi.org/10.17615/32hd-y571
No conservatives among the gray hairs: Quoted from Jonathan Riehl in The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007. https://doi.org/10.17615/32hd-y571
People who were in the Federalist Society: Cribb to Jonathan Riehl in Riehl, Jonathan. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007. https://doi.org/10.17615/32hd-y571
Rebranded originalism: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
Private memos: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
Teles’s article: Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. Studies in American Political Development. 2009;23(1):61-83. doi:10.1017/S0898588X09000030
https://www.cambridge.org/core/journals/studies-in-american-political-development/article/transformative-bureaucracy-reagans-lawyers-and-the-dynamics-of-political-investment/629E508D14FAABFD386512801B460B89
“These ideas slowly became established”: Edwin Meese interview with the author
OLP: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. Studies in American Political Development. 2009;23(1):61-83. doi:10.1017/S0898588X09000030
https://www.cambridge.org/core/journals/studies-in-american-political-development/article/transformative-bureaucracy-reagans-lawyers-and-the-dynamics-of-political-investment/629E508D14FAABFD386512801B460B89
Lunches at DOJ: Among others, Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. Studies in American Political Development. 2009;23(1):61-83. doi:10.1017/S0898588X09000030
https://www.cambridge.org/core/journals/studies-in-american-political-development/article/transformative-bureaucracy-reagans-lawyers-and-the-dynamics-of-political-investment/629E508D14FAABFD386512801B460B89
Mit Spears memo: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
“Tugs and pulls of daily business”: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. Studies in American Political Development. 2009;23(1):61-83. doi:10.1017/S0898588X09000030
https://www.cambridge.org/core/journals/studies-in-american-political-development/article/transformative-bureaucracy-reagans-lawyers-and-the-dynamics-of-political-investment/629E508D14FAABFD386512801B460B89
“Well, yes … you know, we had a plan”: Mit Spears interview with the author
March 18, 1985 memo: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
Buchanan, Fein, Roberts had same idea: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
-
59. Meese’s speech: Edwin Meese’s speech to the American Bar Association, July 9, 1985, online at
https://www.justice.gov/sites/default/files/ag/legacy/2011/08/23/07-09-1985.pdf
“Helping lay the foundation”: Meese’s influence looms in today’s judicial wars by Lynette Clemetson, New York Times, August 17, 2005
https://www.nytimes.com/2005/08/17/politics/meeses-influence-looms-in-todays-judicial-wars.html
Meese’s speech: Edwin Meese’s speech to the American Bar Association, July 9, 1985, online at
https://www.justice.gov/sites/default/files/ag/legacy/2011/08/23/07-09-1985.pdf
Brennan response: Justice William J. Brennan Jr.’s speech at Georgetown University, October 12, 1985, online at
https://fedsoc.org/commentary/publications/the-great-debate-justice-william-j-brennan-jr-october-12-1985
“Took on a life of its own”: Michael Greve interview with the author
“The best, best thing”: Edwin Meese interview with the author
Post and Siegel law review: Robert Post and Reva Siegel, Originalism as a Political Practice: The Right's Living Constitution, 75 Fordham L. Rev. 545 (2006).
https://ir.lawnet.fordham.edu/flr/vol75/iss2/5
Calvin Terbeek: Terbeek, Calvin. “Clocks Must Always Be Turned Back”: Brown v. Board of Education and the Racial Origins of Constitutional Originalism. American Political Science Review. 2021;115(3):821-834. doi:10.1017/S0003055421000095
https://www.cambridge.org/core/journals/american-political-science-review/article/clocks-must-always-be-turned-back-brown-v-board-of-education-and-the-racial-origins-of-constitutional-originalism/AEA2474F0FC8EA1C0C77F7481DC670D6
Change the people, change the values: Among others, Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. Studies in American Political Development. 2009;23(1):61-83. doi:10.1017/S0898588X09000030
https://www.cambridge.org/core/journals/studies-in-american-political-development/article/transformative-bureaucracy-reagans-lawyers-and-the-dynamics-of-political-investment/629E508D14FAABFD386512801B460B89
They knew it was political: Among others, Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
In a 1985 memo to Meese: Identifying canduidates who share the presidents philosophy: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
“The most important part of the deal”: Spears interview with the author
March 18 memo: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
“Neither right nor left”: Edwin Meese speech, “On a Jurisprudence of Original Intention” delivered before the Federalist Society Lawyers Convention, 1987, republished in the Harvard Journal of Law and Public Policy, winter 1988
https://heinonline.org/HOL/Page?handle=hein.journals/hjlpp11&id=25&collection=journals&index= and
https://www.americanrhetoric.com/speeches/edwinmeeseDCfederalistsociety.htm
Topple enemy regimes: Calabresi to Jonathan Riehl in Riehl, Jonathan. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think About It. 2007. https://doi.org/10.17615/32hd-y571
“We were taking this seriously?”: Michael Greve interview with the author
“What’s that supposed to be?”: Michael Greve interview with the author
“A conservative agenda in drag”: Michael Greve interview with the author
Markman bio: Among others, Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. Studies in American Political Development. 2009;23(1):61-83. doi:10.1017/S0898588X09000030
https://www.cambridge.org/core/journals/studies-in-american-political-development/article/transformative-bureaucracy-reagans-lawyers-and-the-dynamics-of-political-investment/629E508D14FAABFD386512801B460B89
Markman’s memos: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365s
“Random thoughts”: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
“Believers and non-believers”: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
“Camouflage”:: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
Identify a theory of their own :Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
“That wasn’t something that turned off conservatives”: Stephen Markman interview with the author
We are not choosing judges: Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
“It’s very difficult to do that”: Stephen Markman interview with the author
If we are serious: Markman to Fried in Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
Similar counsel: "Memorandum to Charles Fried. Implementing the Jurisprudence of Original Intentions," 12/2/1985, Folder: [Meese, Edwin] Office of Legal Policy (OLP), Box: 86, Component Correspondence Files of the Attorney General, HMS Entry: A1 1094, Record Group: 60, NARA.
“It’s a propaganda tool”: Charles Fried interview with the author
-
Chapter Eight
Three different versions: This conception of the Federalist Society emerged from interviews with senators Sheldon Whitehouse and Russell Feingold, among others
“Dr. Jekyll and Mr. Hyde”: Sen. Russell Feingold interview with the author
“Students know the deal”: Feingold in our interview said he had many good experiences addressing Federalist Society events. “On the other hand, my organiation now was not as strong. The American Constitution Society had programs, but they didn't have the funding to do what these guys did. What gets people to come to programs at law schools is free food. I spoke at one of their events at the University of Chicago, packed crowd, I go wow, there’s a lot of people here to see me. Turns out it was Thai food. They had food from the best Thai restaurant in Chicago.”
Great federal judicial turnstile: Among others, The Conservative Pipeline to the Supreme Court by Jeffrey Toobin, the New Yorker, April 10, 2017
https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court
How conservatives built a powerful judicial pipeline, The Week, August 27, 2018
The Scheme, speech five, by Sen. Sheldon Whitehouse, U.S. Senate, July 27, 2021
https://www.whitehouse.senate.gov/news/speeches/the-scheme-speech-5-the-federalist-society/
A conservative activist’s behind the scenes campaign to remake the nation’s courts by Robert O’Harrow Jr. and Shawn Boburg, Washington Post, May 21, 2019
https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/
Riehl, Jonathan. 2007. The Federalist Society and Movement Conservatism: How a Fractious Coalition On the Right Is Changing Constitutional Law and the Way We Talk and Think about it. https://doi.org/10.17615/32hd-y571
We don’t talk about Leonard by Andy Kroll, Andrea Bernstein and Ilya Marritz, ProPublica, October 11, 2023
https://www.propublica.org/article/we-dont-talk-about-leonard-leo-supreme-court-supermajority
Vetting, vouching and auditioning: The third Federalist Society, by Sen. Sheldon Whitehouse, U.S. Senate, March 28, 2019
https://www.whitehouse.senate.gov/news/speeches/the-third-federalist-society/
Dark money and the courts, report by the American Constitution Society
https://www.acslaw.org/analysis/reports/dark-money/
Federalist Court: How the Federalist Society became the de facto selector of Republican Supreme Court justices by Lawrence Baum and Neal Devins, Slate, January 31, 2017
https://slate.com/news-and-politics/2017/01/how-the-federalist-society-became-the-de-facto-selector-of-republican-supreme-court-justices.html
How the Federalist Society Won by Emma Green, the New Yorker, July 24, 202
https://www.newyorker.com/news/annals-of-education/how-the-federalist-society-won
How the Federalist Society Conquered the American Legal System, by Peter Shamshiri, Rhiannin Hamam, Michael Liroff, Balls and Strikes, February 13, 2014
We don’t talk about Leonard by Andy Kroll, Andrea Bernstein and Ilya Marritz, ProPublica, October 11, 2023
https://www.propublica.org/article/we-dont-talk-about-leonard-leo-supreme-court-supermajority
See also Confirmation Bias by Carl Hulse, Justice on the Brink by Linda Greenhouse, Dissent by Jackie Calmes and Supreme Ambition by Ruth Marcus
State supreme courts: Among others, How Leonard Leo’s project to reshape US judiciary got its start in Wisconsin by Andrea Bernstein and Andy Kroll, ProPublica, October 23, 2023
https://www.theguardian.com/us-news/2023/oct/23/leonard-leo-us-judiciary-wisconsin-north-carolina
How Republicans flipped America’s state supreme courts, by Aaron Mendelson, report for the Center for Public Integrity, July 24, 2023
Need not take any official stances: The third Federalist Society, by Sen. Sheldon Whitehouse, U.S. Senate, March 28, 2019
https://www.whitehouse.senate.gov/news/speeches/the-third-federalist-society/
One couldn’t happen without the other: The Scheme by Sheldon Whiteouse with Jennifer Mueller, New Press, 2022
“Really not much grosser”: Sen. Sheldon Whitehouse interview with the author
One big machine: The Scheme by Sheldon Whiteouse with Jennifer Mueller, New Press, 2022
Dark money and the courts, report by the American Constitution Society
https://www.acslaw.org/analysis/reports/dark-money/
We don’t talk about Leonard by Andy Kroll, Andrea Bernstein and Ilya Marritz, ProPublica, October 11, 2023
https://www.propublica.org/article/we-dont-talk-about-leonard-leo-supreme-court-supermajority
Battle for the bench, report by the National Lawyers Guild, by Tracy Yoder, July 19, 2018
https://www.nlg.org/battle-for-the-bench-resisting-the-rise-of-the-judicial-right/
Megamillions bankrolling the group: The Senate committee’s work, and most of what we know about Leo and dark money, would not be possible without the brilliant and indefatigable work of Lisa Graves, who now runs True North Research
https://truenorthresearch.org/lisa-graves/
Untrackable dark money: Sen. Whitehouse has done magnificent heavy lifting through the Senate Judiciary Committee through the Captured Courts reports
https://www.democrats.senate.gov/imo/media/doc/Captured%20Courts%20Report%204-5-22.pdf
Whitehouse says: Whitehouse’s important book, The Scheme, also collects much of this research
The Scheme by Sheldon Whiteouse with Jennifer Mueller, New Press, 2022
“The venue where Supreme Court nominees were chosen”: Sen. Sheldon Whitehouse interview with the author
“Of course we can’t say that now”: Sen. Sheldon Whitehouse interview with the author
Collegial debate club: The Federalist Society has been downplaying itself as a humble debate club for decades, including in this New York Times piece from Jason DeParle on August 1, 2005
https://www.nytimes.com/2005/08/01/politics/politicsspecial1/debating-the-subtle-sway-of-the-federalist.html
Credentialing network for the conservative legal movement:: Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. Studies in American Political Development. 2009;23(1):61-83. doi:10.1017/S0898588X09000030
https://www.cambridge.org/core/journals/studies-in-american-political-development/article/transformative-bureaucracy-reagans-lawyer as well as Teles, The Rise of the Conservative Legal Movement.
-
Personnel is policy: James Mit Spears interview with the author. Teles’s work has made the same point
Provide a fast track: Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. Studies in American Political Development. 2009;23(1):61-83. doi:10.1017/S0898588X09000030
https://www.cambridge.org/core/journals/studies-in-american-political-development/article/transformative-bureaucracy-reagans-lawyer as well as Teles, The Rise of the Conservative Legal Movement.
McDowell to Teles: Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment. Studies in American Political Development. 2009;23(1):61-83. doi:10.1017/S0898588X09000030
https://www.cambridge.org/core/journals/studies-in-american-political-development/article/transformative-bureaucracy-reagans-lawyer as well as Teles, The Rise of the Conservative Legal Movement.
The story of William Pryor: I Called the Federal Judge Who Mocked Me to the Federalist Society by Mark Joseph Stern, Slate, December 11, 2022
https://slate.com/news-and-politics/2022/12/federalist-society-judge-william-pryor-interview.html
By the mid-1980s: I Called the Federal Judge Who Mocked Me to the Federalist Society by Mark Joseph Stern, Slate, December 11, 2022
https://slate.com/news-and-politics/2022/12/federalist-society-judge-william-pryor-interview.html
“The only thing”: I Called the Federal Judge Who Mocked Me to the Federalist Society by Mark Joseph Stern, Slate, December 11, 2022
https://slate.com/news-and-politics/2022/12/federalist-society-judge-william-pryor-interview.html
Original 11 names: Alabama's William Pryor on Trump's list for Supreme Court, by Brad Harper, Montgomery Advertiser, May 18, 2016
https://www.montgomeryadvertiser.com/story/news/2016/05/18/alabamas-william-pryor-trumps-list-supreme-court/84551926/
Federalist Society connections: I Called the Federal Judge Who Mocked Me to the Federalist Society by Mark Joseph Stern, Slate, December 11, 2022
“The Federalist Society made that possible”: I Called the Federal Judge Who Mocked Me to the Federalist Society by Mark Joseph Stern, Slate, December 11, 2022
“Unless you start changing the face of the judiciary”: Spears interview with the author
Pasco Bowman: Willard quoted by Teles in The Rise of the Conservative Legal Movement
“There was a complementary relationship”: Stephen Markman interview with the author
Bork’s tactical mistake: Point made powerfully by Erwin Chemerinsky in Worse Than Nothing: The Dangerous Folly of Originalism, Yale Universiry Press, 2022
Lee Liberman Otis moved: As a 2002 report notes, “Roger J. Miner, a senior federal appeals court judge appointed to the bench by Ronald Reagan, observed this role: “Lee Liberman [Otis], a founder of the new Federalists and now Assistant Counsel to the President, examines all candidates for federal judgeships for ideological purity. It is well known that no federal judicial appointment is made without her imprimatur.” Otis—who co-founded the Society’s University of Chicago chapter in 1982— screened judicial candidates and worked closely with Society leader C. Boyden Gray, White House counsel under President George H.W. Bush. As a former Supreme Court law clerk has observed, membership in the Society “became a prerequisite” for law students seeking clerkships with many Reagan judicial appointees, as well as for top positions in the Justice Department and the White House.”
The Federalist Society: From Obscurity to Power, report by the People for the American Way, 2002
https://www.pfaw.org/wp-content/uploads/2017/01/federalist-society-report.pdf?
“The bottom-up story”: Amanda Hollis-Brusky interview with the author
“Get phased out”: Amanda Hollis-Brusky interview with the author
Detailed blueprints: Markman memos available at Gallagher, Patrick, The Conservative Incubator of Originalism: The Reagan Department of Justice (July 29, 2017). Available at SSRN: https://ssrn.com/abstract=3022365 or http://dx.doi.org/10.2139/ssrn.3022365
Constitution in the Year 2000: The Constitution in the year 2000: Choices ahead in constitutional interpretation, DOJ Office of Legal Policy, 1988
https://lawcat.berkeley.edu/record/88588
Constitution is what the judges say it is: The Constitution in the year 2000: Choices ahead in constitutional interpretation, DOJ Office of Legal Policy, 1988
https://lawcat.berkeley.edu/record/88588
The meaning of the constitution in the year 2000 will be determined by the judges: The Constitution in the year 2000: Choices ahead in constitutional interpretation, DOJ Office of Legal Policy, 1988
https://lawcat.berkeley.edu/record/88588
Central takeaway: The Indiana University law professor Dawn Johnsen rang the bell earliest and loudest about these reports, including in this law review article Johnsen, Dawn E. (2003) "Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change," Indiana Law Journal: Vol. 78: Iss. 1, Article 10.
https://www.repository.law.indiana.edu/ilj/vol78/iss1/10
Gonzales arrived: The conservative pipeline to the Supreme Court by Jeffrey Toobin, New Yorker, April 10, 2017
https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court
“He did not know the Federalist Society”: Flanigan quoted by Toobin in The conservative pipeline to the Supreme Court by Jeffrey Toobin, New Yorker, April 10, 2017
https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court
Harriet Miers: The conservative pipeline to the Supreme Court by Jeffrey Toobin, New Yorker, April 10, 2017
https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court
“We need to know you”: Hollis Brusky quoted by Toobin in The conservative pipeline to the Supreme Court by Jeffrey Toobin, New Yorker, April 10, 2017
https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court
“I had always been a big Sam Alito fan”: Leo quoted by Toobin in The conservative pipeline to the Supreme Court by Jeffrey Toobin, New Yorker, April 10, 2017
https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court
“They make every minute of it count”: Bruce Bartlett interview with the author
You know everybody: The conservative pipeline to the Supreme Court by Jeffrey Toobin, New Yorker, April 10, 2017
https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court
They all know Leonard and he knows all of them: Teles quoted by Toobin in The conservative pipeline to the Supreme Court by Jeffrey Toobin, New Yorker, April 10, 2017
https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court
-
During the hearings: Story included in Confirmation Bias by Carl Hulse, HarperCollins, 2019
Alex Kozinski: Judge Kozinski interview with the author
Moneybags kid: Among others, A conservative activist’s behind the scenes campaign to remake the nation’s courts by Robert O’Harrow Jr. and Shawn Boburg, Washington Post, May 21, 2019
https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/
Three future Supreme Court justices: Supreme Court is about to have 3 Bush v. Gore alumni sitting on the bench by Joan Biskupic, CNN, October 17, 2020
https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html
Adoption of his son: Among others, Supreme Court is about to have 3 Bush v. Gore alumni sitting on the bench by Joan Biskupic, CNN, October 17, 2020
https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html
“It was bedlam”: Carvin interview with the author and also in How Amy Coney Barrett played a role in Bush v. Gore — and helped the Republican Party defend mail ballots by Beth Reinhard and Tom Hamburger, Washington Post, October 10, 2020
https://www.washingtonpost.com/politics/amy-coney-barrett-bush-gore/2020/10/10/594641b8-09e3-11eb-991c-be6ead8c4018_story.html
“I really appreciate your input”: Bush’s emails revealed by the Wall Street Journal, Emails Offer View of How Jeb Bush Operated as Florida Governor by Beth Reinhard, Wall Street Journal, December 26, 2014
https://www.wsj.com/articles/emails-offer-view-of-how-jeb-bush-operated-as-florida-governor-1419623395?mod=WSJ_hpp_MIDDLENexttoWhatsNewsForth
According to Texas senator Ted Cruz: A Time for Truth by Ted Cruz, Broadside Books, 2015
Amy Coney Barrett, meanwhile: Supreme Court is about to have 3 Bush v. Gore alumni sitting on the bench by Joan Biskupic, CNN, October 17, 2020
https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html
How Amy Coney Barrett played a role in Bush v. Gore — and helped the Republican Party defend mail ballots by Beth Reinhard and Tom Hamburger, Washington Post, October 10, 2020
https://www.washingtonpost.com/politics/amy-coney-barrett-bush-gore/2020/10/10/594641b8-09e3-11eb-991c-be6ead8c4018_story.html
FedSoc barbecues at his Virginia home: As Amanda Hollis-Brusky explains, “He had a barbecue every year. And these students would talk to me about being invited to Ted Olson’s barbecue and how it was, like, the coolest thing they could possibly imagine. Clarence Thomas is walking around in a Hawaiian button-down shirt smiling and chatting everyone up. These are the kinds of things that I think the Federalist Society has been effective at using its funding to give young students this window into the world of conservative power.” The incredible influence of the Federalist Society, explained, Vox, by Byrd Pinkerton and Dylan Matthews, June 3, 2019
https://www.vox.com/future-perfect/2019/6/3/18632438/federalist-society-leonard-leo-brett-kavanaugh
Using that single word, legislature: How a Fringe Legal Theory Became a Threat to Democracy by Andrew Marantz, the New Yorker, June 5, 2023
https://www.newyorker.com/magazine/2023/06/12/how-a-fringe-legal-theory-became-a-threat-to-democracy
Brett Kavanaugh on CNN: Here’s what Brett Kavanaugh said on CNN about Bush v. Gore in 2000 by Devin Cole, CNN, Oct 27, 2020
https://www.cnn.com/2020/10/27/politics/bush-gore-cnn-interview-brett-kavanaugh/index.html#:~:text=%E2%80%9CAnd%20I%20think%20what%20we,arguments%20but%20before%20they%20ruled.
Bush v Gore decision: Bush v. Gore, 531 U.S. 98 (2000)
https://www.oyez.org/cases/2000/00-949
Scalia piece of shit: Scalia thought Bush v. Gore legal rationale was a ‘piece of sh-t’ but backed it anyway by David Mark, Washington Examiner, March 7, 2019
https://www.washingtonexaminer.com/news/1843981/scalia-thought-bush-v-gore-legal-rationale-was-a-piece-of-sh-t-but-backed-it-anyway/
Federalist Society should not be calling people in government: Not because it’s wrong, but Kavanaugh writes Leo, “This is presenting protocol issues.”
https://fixthecourt.com/wp-content/uploads/2019/03/Kavanaugh-Feb.-11-e-mails-GWBL.pdf
Emails show that: A conservative activist’s behind the scenes campaign to remake the nation’s courts by Robert O’Harrow Jr. and Shawn Boburg, Washington Post, May 21, 2019
https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/
Leonard Leo will know where to find money: A conservative activist’s behind the scenes campaign to remake the nation’s courts by Robert O’Harrow Jr. and Shawn Boburg, Washington Post, May 21, 2019
https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts/
Sen. Sheldon Whitehouse, The Scheme, speech five
https://www.whitehouse.senate.gov/news/speeches/the-scheme-speech-5-the-federalist-society/
“Brett told me”: Decision Points by George W. Bush, Crown, 2010
JCN launched for Roberts: We don’t talk about Leonard by Andy Kroll, Andrea Bernstein and Ilya Marritz, ProPublica, October 11, 2023
https://www.propublica.org/article/we-dont-talk-about-leonard-leo-supreme-court-supermajority
How Leonard Leo’s project to reshape US judiciary got its start in Wisconsin by Andrea Bernstein and Andy Kroll, ProPublica, October 23, 2023
https://www.theguardian.com/us-news/2023/oct/23/leonard-leo-us-judiciary-wisconsin-north-carolina
He might indeed: ProPublica later found another email in which Bush DOJ lawyers “discussed how best to publicize a white paper promoting a controversial nominee to an appeals court. One lawyer said he was looking for an organization to “launder and distribute” the paper, presumably so it wouldn’t come from the Bush administration itself. “Use fed soc,” Viet Dinh, a Federalist Society member who was then a high-ranking official at the DOJ, replied. “Tell len leo I need this distributed asap.” We don’t talk about Leonard by Andy Kroll, Andrea Bernstein and Ilya Marritz, ProPublica, October 11, 2023
https://www.propublica.org/article/we-dont-talk-about-leonard-leo-supreme-court-supermajority
“Leonard was the guy”: Steve Schmidt to ProPublica in We Don’t Talk About Leonard: The Man Behind the Right’s Supreme Court Supermajority by Andy Kroll, Andrea Bernstein and Ilya Marritz, ProPublica, October 11, 2023
https://www.propublica.org/article/we-dont-talk-about-leonard-leo-supreme-court-supermajority#:~:text=On%20paper%2C%20the%20network%20was,%E2%80%9CA%20hundred%20percent.%E2%80%9D