John Roberts, the Magician?

The opening of a new Supreme Court term this week brought the predictable slew of articles about the Roberts Court’s supposed lurch to the right. As others have noted, the hyperbole typical of these articles suggests that they are probably aimed at influencing Justice Anthony Kennedy, the Court’s swing vote. Nonetheless, we did not expect to see a piece as over the top as this week’s Slate essay—penned by prominent Court observer Dahlia Lithwick and co-author Barry Friedman—accusing the Roberts Court of magician-like sleight of hand. The essay’s thesis:

“[The Roberts] court has taken the law for a sharp turn to the ideological right, while at the same time masterfully concealing it. Virtually every empirical study confirms this rightward turn. Yet recent public opinion polls indicate Americans continue to see a bench that is, if anything, a wee bit too liberal. How to explain the justices shoving the law rightward, while everyone thinks it is dead center or too far left?”

Put aside the far-fetched and conspiratorial nature of the allegation. Put aside how to square the Court’s masterful concealment of its right-wing aims with the slew of articles and “studies” accusing the Court of lurching to the right. And put aside the essay’s confusion of direction with location (the Court moving to the right tells you no more about where it is relative to the “dead center” than a train’s northward movement tells you whether it is north or south of Washington, DC).

What remains is the contention that only an illusion can explain why Americans currently view the Supreme Court as “a wee bit too liberal.” It’s a bizarre contention given that one need only look at issue-oriented public opinion polls to find an obvious explanation. Stuart Taylor, former New York Times Supreme Court reporter and National Journal columnist, did just that and concluded that

“[On] six of the most contentious subjects that come before the justices on a recurring basis: abortion; race; religion; the death penalty; gay rights; and presidential war powers. On every one of them, the Court’s precedents are to the left of, or very close to, the center.”

Following the Court’s 2008 Boumediene decision, bestowing habeas corpus rights on Gitmo terror suspects—a position decidedly to the left of public opinion—we noted that

“While it’s certainly true that the Court has drifted right of the New York Times, the nation’s law faculty, and the typical elite cocktail party, the dirty little secret is that the Court is decidedly centrist when compared to the American people. The hysteria about the Court’s ‘right wing assault’ on abortion, desegregation, and the separation of church and state has obscured the fact that large majorities of the public oppose partial-birth abortion and racial preferences and favor some role for religion in the public sphere.”

The Roberts Court’s racial preferences and partial-birth abortion decisions are two that Lithwick and Friedman cite in building their case for trickery. But let’s put aside the fact that they concocted their master illusionist theory to explain a disparity that doesn’t exist and briefly consider some of their claims. They start with “Trick 1: Stacking the Deck:”

“The Roberts Court has proven itself adept, brilliant even, at stacking the deck that is its annual docket. It does so by picking cases with facts so extreme that only one outcome seems possible. Then it uses those same reasonable-seeming decisions to push the law in conservative directions. … Take last term's Maryland v. Shatzer: … basically the entire court—all nine justices, conservatives and liberals alike—disagree with [an accused molester’s] claim. You might say, who cares: Shatzer deserves what he gets and worse. But … the rest of us get [a decision weakening the] Miranda rule.”

The essay’s primary example of stacking the deck is both misleading and condescending. The authors forget to tell their readers that only four votes are required to put a case on the Court’s annual docket, such that the four liberal Justices could use this “trick” just as easily as the five center-right Justices. Moreover, they imply that the Court’s four liberal Justices were hoodwinked into weakening the Miranda Rule by presenting them with a case with unpleasant facts. Apparently, Lithwick and Friedman are too smart to be fooled by such tricks.

But it’s not just the liberal justices who are easily hoodwinked. So are the media. In explaining “Trick 2: Misdirection,” Lithwick and Friedman claim that

“While we are watching the term's ‘big’ cases, [the Roberts Court] works its magic on the ones we aren't paying attention to, which often matter more. In this enterprise, the court is aided and abetted by the media.”

It’s a good thing that at least one member of the media, Ms. Lithwick, is paying attention.

In the interest of space, we’ll skip Tricks 3 and 4 and go on to “Trick 5: Sawing the Lady in Half.” Perhaps Lithwick and Friedman put this trick last because it makes no sense on its face. Here’s how they see it:

“How does the chief justice work to maintain the illusion that political ideology is not present on the Supreme Court while at the same time taking sharp steps to the right? … [By using] cases where the ideological left splits internally, allowing the right to say that the issue is not ideological at all. … [For example, in] another of the decisions whittling Miranda away, Florida v. Powell, Roberts shrewdly gave the nod to liberal justice Ruth Bader Ginsburg to write the court's decision.”

Forget for the moment the authors’ apparent belief that Justice Ginsburg was hoodwinked again into weakening Miranda rights, this time by Chief Justice Roberts’ nod to her ego. Consider, instead, that the scenario they describe—where some liberal Justices join the conservatives or vice versa—is the very definition of decisions that are non-ideological because they cut across ideological lines. So what Lithwick and Friedman are actually claiming is that the Roberts Court is duping Americans into believing that its decisions are “not ideological” by issuing decisions that are, well, non-ideological. Several words could be used to describe that sort of reasoning, but we’ll leave the choice to the reader.