The Nine [72]
Such was the justices’ isolation from one another that the best advocacy could be done only in oral argument, when they were a captive audience for one another. For this reason, Breyer planned his questions with care, not because he was especially interested in the answers but because his questions were a way of making his case to his colleagues. Like the law professor he used to be, Breyer favored hypothetical questions. At times, they could be overly long and complex, and Breyer’s point would be lost; once, mysteriously, he asked a question about taking a pet oyster for a walk in the park. But on other occasions Breyer distilled an issue to its essence. It might be an exaggeration, but not by much, to say that a single question from Breyer on November 10, 1999, brought the “federalism revolution” to a close.
In the early nineties, several states were making millions of dollars selling the information in their Department of Motor Vehicles databanks to direct-mail operators, insurance companies, and other marketers. Citizens began objecting to the practice, and Congress responded in 1994 by passing the Driver’s Privacy Protection Act, which essentially told states they couldn’t make such sales without the drivers’ consent. South Carolina sued to stop enforcement of the act, asserting that the federal law was a violation of states’ rights.
The claim seemed to mesh with the Rehnquist Court’s approach to federalism. Here was Congress dictating to the states how they should manage a classic function of state government, administering driver’s licenses. In 1997, the Court had struck down part of the Brady Bill gun control law, saying that the federal government had no right to force states to conduct background checks on gun buyers. As Scalia wrote for the Court in that case, “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers…to administer or enforce a federal regulatory program.” Wasn’t the law on driver’s licenses the same thing—a directive to the states to solve a particular problem?
Breyer thought that the regulation of a massive and complex national economy could only be led by the federal government and that Congress had every right to pass these kinds of laws. But how, he wondered, could he make that point in the context of this case?
South Carolina was represented by its attorney general, Charles Condon, who was also the plaintiff in the case, known as Reno v. Condon. One of the immutable laws of oral advocacy in the Supreme Court is that elected officials, like state attorneys general, ought not to do it. Especially in the Rehnquist years, when aggressive questioning from the bench was the rule, nonspecialists generally failed miserably to advance their cause in front of the justices. Politicians generally possessed none of the key attributes of good oral advocacy: intimate knowledge of the Court’s precedents, intellectual dexterity with complex concepts, the ability to answer hard questions concisely. (John Ashcroft had a notoriously bad outing in front of the justices when he was attorney general of Missouri; wisely, then, Ashcroft did not follow the informal tradition for each attorney general of the United States to argue a case.) Still, few state attorneys general can set aside their egos long enough to forgo the opportunity to argue themselves. So it was with Charlie Condon.
“This case is not about protecting privacy,” Condon began, promisingly enough. “The issue in this case is whether thousands of state officials across the country can be pressed into federal service by the Congress to administer a federal regulatory act. The Driver’s Privacy Protection Act is complex, it’s burdensome, and it applies only to the states of the United States.”
When Condon said, “We’re being puppets of the federal government,” Breyer decided to spring his trap.
“Isn’t that true of every federal prohibition on what a state government does?” Breyer asked.