The media is quick to paint Chief Justice John Roberts’ Supreme Court into an ideological corner, tagging it conservative or liberal, minimalist or imperialist, unified or deeply fractured. But these overarching broad analyses reported by the press are often inaccurate, says Dahlia Lithwick, scrutinizing the Supreme Court’s 2007-8 term in a panel discussion hosted by the Heritage Foundation.
Anyone who attempts to make broad conclusions about the Court’s political leaning, or predicts which way the justices will vote, does so in the way of an “optical illusion.” Lithwick explains that it involves two tricks: 1) extrapolate the 67 cases heard by the Supreme Court this year into sounding like 365 cases, or 2) ignore half of the cases ruled on.
“I think you have to be very, very careful when you’re talking about a handful of cases,” Lithwick says, noting that in 2007-8 the Court ruled on only 67 cases, the lowest number in modern history.
One particular news item Lithwick honed in on at the panel discussion was an article in The New Republic called “Narrow Minded” in which the author, Jeffrey Rosen, asserted Roberts “succeeded impressively” at “promot[ing] unanimity and collegiality” on the Court. But Lithwick says anyone who presumes the Roberts Court is characterized by “a new era of good feeling and unanimity” is misleading the public. In order to make such an analysis “you have to sort of put your hand over half the cases, all the cases that were not decided that way, but were, in fact, fractious and angry.”
She points to cases that had close 5-4 rulings to prove her point, like Boumediene v. Bush—which extended habeas corpus rights to Guantanamo Bay detainees—the DC v. Heller handgun case, and the Louisiana child rape case Kennedy v. Louisiana. (It should be noted that Rosen edited his original article to account for these more recent cases, some of which were decided the last two weeks of the Court’s 2007-8 term).
Another hot topic the press enjoys editorializing on is the ideological make-up of the Court. Fellow panelist Stuart Taylor, Jr. chuckles at a New York Times editorial that he said reports, “the sky is falling, the right-wing nuts have taken over and all is almost lost unless you vote for Obama to somehow help stop the tide.”
Giggles aside, there is much hullabaloo in the press that the Court is comprised of four conservatives, four liberals and one swing vote in the center (Justice Anthony Kennedy). But the Court is not that polarized, Lithwick protests.
“This is not a simple 4-4 court,” says Lithwick. “It’s just not that simple, there are deep, deep fractures on both of the sort of simple liberal/conservative camps on the Court.”
She argues Chief Justice Roberts and Justice Samuel Alito are prone to peel away from the two other conservative justices, Justices Antonin Scalia and Clarence Thomas. Often they do not go as far Scalia and Thomas, who have a penchant for striking down precedent. Correspondingly, Justices John Paul Stevens and Steven Breyer, two of the more seemingly liberal justices, do not always vote with their more liberal associates.
Lithwick stresses that the press’s perception that “it all just comes down to a sharply polarized 4-4 Court, you can predict exactly how they’re going to come out, input it into a computer, it’s going to come out one way or another and then it all turns on Kennedy” is illusory because to say that means “you also have to put your hand on a significant number of the decisions that… we all expected to come down 5-4 and didn’t.”
A few examples that prove the Court has the ability to vote in agreement include the Crawford v. Marion County Election Board voter ID case and the Baze v. Rees death penalty case, both unanimous 9-0 rulings.
Another flawed notion the press hastily promulgates is the Court is minimalist and modest, only ruling on cases that need to be decided on. But the justices are not shy to tackle huge cases, or to make bold proclamations. The Heller DC handgun case is once again a case in point, because it was the first time in decades that the Court interpreted the second amendment. Nor is the Supreme Court imperialist, exercising judicial activism every time the opportunity arises. This past term they refrained from pronouncing several contentious issues, like voter identification law in Crawford and lethal injection in Baze. Rather the justices chose to rule narrowly.
“[Crawford and Baze] in effect said, we are not going to proclaim on the large question of voter ID, we’re not going to proclaim on the large question of the death penalty, we’re going to wait ‘til better facts come along,” Lithwick surmised.
So if the court isn’t imperialist or modest, conservative or liberal, unified or fractured, what is it? How does one describe the Roberts Court?
It may be too early to tell, Lithwick says, and there is no such thing as a “Robert’s Court” just yet. She reminds us that President George W. Bush appointed Roberts as Chief Justice only three years ago.
“We are very new into the Roberts Court. I think it’s really important to emphasize that every time you replace a Justice on the Court, there’s a whole new dynamic at play. It’s not sub out Alito for [former Justice Sandra Day] O’Connor and life goes on,” said Lithwick. “They’re feeling their way, these Justices, towards what this new Court is and I think it’s a real mistake to suggest there is such thing as the Roberts Court yet.”
It may be dangerous to overgeneralize the Court’s inclinations, but it is safe to say some trends are emerging that may help characterize the enigmatic court. According to Lithwick, two trends are apparent: 1) a generational split between the younger and elder justices in which the younger justices may be more willing to break with precedent, and 2) the ardent seduction of Justice Kennedy’s vote by all the other justices.
More themes may become apparent when the Court rules on more cases, but until then it still remains to be seen what kind of court Chief Justice Roberts leads, and the press should refrain from falsely assuming the Court is one way when there is clearly evidence suggesting the contrary.