Greenhouse and Special to the New York Times, “The Year the Court Turned to the Right,” New York Times, July 7, 1989, A1.
62. “Chief Justice Souter?” Wall Street Journal, February 29, 2000, wsj/articles/SB951789438683921325.
63. Jeremy Rabkin, “The Sorry Tale of David Souter, Stealth Justice,” Weekly Standard, November 6, 1995.
64. John Fund, “The Borking Begins,” Wall Street Journal, January 8, 2001.
65. Senator Warren Rudman, a Republican who endorsed Souter, later said he would have voted against Thomas if he had been the decisive vote and declared that confirming Thomas was “a vote I’m not proud of.” “Interview with Warren Rudman,” interview by Janet E. Heininger and Stephen Knott, Edward M. Kennedy Oral History Project, May 16, 2006; Kevin Merida and Michael Fletcher, Supreme Discomfort: The Divided Soul of Clarence Thomas (New York: Doubleday, 2007), 203.
66. Ross, “The Role of Judicial Issues in Presidential Campaigns,” 461.
67. Ibid.
68. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012); King v. Burwell, 576 U.S. ___ (2015).
69. Joan Biskupic, The Chief (New York: Basic Books, 2019): 234–48.
70. Colin Campbell, “Donald Trump dials up his attacks: ‘Ted Cruz gave us Obamacare,’ ” Business Insider, February 4, 2016, businessinsider/donald-trump-ted-cruz-obamacare-2016-2.
71. Fred Barnes, “Bush Scalia,” Weekly Standard, July 5, 1999, weeklystandard/fred-barnes/bush-scalia.
72. “October 8, 2004 Debate Transcript,” Commission on Presidential Debates, October 8, 2004, debates/voter-education/debate-transcripts/october-8-2004-debate-transcript/.
73. Robert Barnes, “How the Bush-nominated Chief Justice Roberts became target in GOP debates,” Washington Post, September 17, 2015, washingtonpost/politics/chief-justice-roberts-is-target-of-conservative-fire-in-gop-debates/2015/09/17/c66c62ba-5d43-11e5-8e9e-dce8a2a2a679_story.html?utm_term=.2dc37c186d9c.
74. Jessica Hopper, “Ted Cruz Plans to Filibuster Any Supreme Court Nominee Made by President Obama,” ABC News, February 14, 2016, abcnews.go/Politics/ted-cruz-plans-filibuster-supreme-court-nominee-made/story?id=36922959.
75. Jon Prior, “GOP Candidates spar over Chief Justice Roberts,” Politico, February 14, 2016, politico/story/2016/02/scalia-roberts-supreme-court-justices-219284.
76. Melinda Henneberger, “In Death, Scalia may Succeed in Blocking Trump,” Roll Call, February 15, 2016, rollcall/news/in-death-scalia-may-succeed-in-blocking-trump.
77. Textualism is what Justice Scalia referred to as the “commonsensical interpretive principle” that judges should interpret the words of a statute according to their meanings as reasonably understood in context when they were enacted. Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West: 2012), 15.
78. “Donald Trump News Conference,” C-SPAN, March 21, 2016, c-span/video/?407049-1/donald-trump-news-conference-washington-dc&start=2330.
79. Malcolm explains that he considered putting together a longer list of judges and would have included Judges Neil Gorsuch and Ray Kethledge, who ultimately made it onto the Trump list. But given the time crunch and his inability to vet so many people quickly, he settled on a shorter but safer list with the qualification that he didn’t view it as exclusive.
80. It was a good call. Judge Rogers Brown retired just eight months into Trump’s presidency and would be replaced by McGahn’s own deputy, Greg Katsas.
81. Don Willett (JusticeWillett), “Donald Trump haiku—Who would the Donald Name to #SCOTUS? The mind reels. *weeps—can’t finish tweet*,” Twitter, June 16, 2015, 10:09 a.m., JusticeWillett/status/610856791291916290.
82. Lawrence Hurley, “Trump’s Supreme Court list: all conservative, some provocative,” Reuters, May 19, 2016, reuters/article/us-usa-election-trump-court-list/trumps-supreme-court-list-all-conservative-some-provocative-idUSKCN0YA2XV; Stephanie Mencimer, “Trump’s Supreme Court Short List is Really, Really Anti-Contraception,” Mother Jones, May 18, 2016, motherjones/politics/2016/05/trumps-supreme-court-nominees-nod-towards-evangelicals/; Nina Totenberg, “Trump’s Supreme Court List Might Reassure Conservatives, But Leaves Out Big Names,” NPR, May 18, 2016, npr/2016/05/18/478609623/trumps-supreme-court-list-might-reassure-conservatives-but-leaves-off-big-names.
83. Adam Liptak, “Trump’s Supreme Court List: Ivy League is Out, the Heartland is In,” New York Times, November 15, 2016, A21.
84. Ted Cruz, Facebook, September 23, 2016, tedcruzpage/posts/10154476728267464.
85. While the Garland nomination threatened to be big news earlier in the campaign, it became such a non-issue that the Obama nominee’s name wasn’t even mentioned during the Democratic National Committee convention in Philadelphia. Concern for the courts simply did not motivate Democratic voters the way that it was energizing Republicans.
86. Mark Tushnet, “Abandoning Defensive Crouch Liberal Constitutionalism,” Balkinization, May 6, 2016, balkin.blogspot/2016/05/abandoning-defensive-crouch-liberal.html.
87. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
88. Philip Bump, “A quarter of Republicans voted for Trump to get Supreme Court picks – and it paid off,” Washington Post, June 26, 2018, washingtonpost/news/politics/wp/2018/06/26/a-quarter-of-republicans-voted-for-trump-to-get-supreme-court-picks-and-it-paid-off/.
89. Philip Rucker and Seung Min Kim, “ ‘We have to pick a great one’: Inside Trump’s plan for a new Supreme Court justice,” Washington Post, June 30, 2018, washingtonpost/politics/we-have-to-pick-a-great-one-inside-trumps-plan-for-a-new-supreme-court-justice/2018/06/30/610dcd4e-7bb0-11e8-80be-6d32e182a3bc_story.html.
90. Mollie Hemingway, “Fact, not opinion,” Getreligion, October 9, 2006, getreligion/getreligion/2006/10/fact-not-opinion.
Chapter Three: Complicit in Evil
1. Robin Givhan, “Back to the ’50s/Roberts family image was a little too perfect,” SFGate, July 31, 2005, sfgate/living/article/BACK-TO-THE-50S-Roberts-family-image-was-a-2651504.php.
2. “Transcript of President Bush’s Nomination of Miers to the Supreme Court,” National Public Radio, October 3, 2005, npr/templates/story/story.php?storyId=4933801.
3. “Remarks by President Trump Announcing Judge Brett M. Kavanaugh as the Nominee for Associate Justice of the Supreme Court of the United States,” White House website, July 9, 2018, whitehouse.gov/briefings-statements/remarks-president-trump-announcing-judge-brett-m-kavanaugh-nominee-associate-justice-supreme-court-united-states/.
4. “The Confirmation Hearings of Judge David Souter: The