The Nine [196]
Exactly what they had won remained unclear. The degree of judicial activism reflected in the gun control opinion was extraordinary. Scalia even went so far as to say the part of the D.C. law mandating trigger locks was also unconstitutional; under his reading, the Constitution required that guns in the home be available for “immediate self-defense.” In what might have been a wry tweak to his liberal adversaries—the ones he usually accused of activism—Scalia noted gravely, “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
The opinion in Heller guaranteed a flood of new litigation. The Second Amendment now protects the right to possess weapons in the home, but what about outside the home? Is the sale of weapons now also protected by the Constitution? Scalia said the government could regulate some “military” weapons, but what are they, and how can anyone tell? As a result of the Court’s decision in Heller, it will be judges, not voters and elected officials, who will be answering these questions. And it will be years, and perhaps decades, before the courts even debate them.
Indeed, at this precarious moment in the Court’s history, it is hard to say for sure which issues are settled for the long term. The 4–4–1 breakdown of the justices guarantees that on most any controversial issue, the majority will be tenuous. This is especially true on the most politically explosive issues before the Court—abortion, above all. The replacement of a liberal by a conservative—or of a conservative by a liberal—will transform the law, perhaps for a generation. To many, the polarized state of affairs is cause for dismay; the hope for a middle ground—for “the law” to become clear—endures. But this, as the framers knew, remains a false hope. The justices of the Supreme Court are selected by the president and confirmed by the senate because they are part of the grand political design that is our Constitution. And so, with their votes and through this system, the people pick their Supreme Court. In 2008 especially, but in every election as well, the Court’s future is up for a vote.
ACKNOWLEDGMENTS
This book was much improved by the attentive and skillful editing of Phyllis Grann. At Doubleday, I am grateful also to Karyn Marcus, Todd Doughty, Roslyn Schloss, Rebecca Holland, Michael Collica, Bette Alexander, and the boss, Stephen Rubin. Once again, my agent, Esther Newberg, has steered me the right way. My thanks as well to John Q. Barrett of the St. John’s School of Law and to Tom Goldstein of the Akin, Gump firm for their helpful comments on the manuscript, and to Dan Kaufman for fact-checking assistance.
I am privileged to work at The New Yorker, where David Remnick has been a generous editor and a loyal friend. I am fortunate to work with Dorothy Wickenden, Emily Eakin, and Jeffrey Frank. I am lucky, too, in my CNN colleagues, and I thank Jon Klein and Bill Mears for their support of this venture.
Covering the World Cup had absolutely nothing to do with writing about the Supreme Court, but that experience, with my son Adam, was the highlight of this book’s creation. Talking with my daughter Ellen is always a part of my continuing education, about law, politics, and everything else. My days with their mother, Amy McIntosh, are nothing less than the highlight of my life.
NOTES
This book is based principally on my interviews with the justices and more than seventy-five of their law clerks. The interviews were on a not-for-attribution basis—that is, I could use the information provided but without quoting directly