Slate’s Dahlia Lithwick complains that the Supreme Court’s high standing in public-opinion polls reflects the fact that “it remains almost completely misunderstood by the American public.” As regular Bench Memos readers will recognize, I have some sympathy for Lithwick’s overall complaint, but not for the reasons that she presents.
Lithwick believes that the public fails to discern “a clear trend [at the Court] in which big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.” But one good reason that the public doesn’t discern that trend is that its existence is a fantasy of Lithwick’s creation—“breathtakingly inconsistent with reality,” as Hans Bader spells out in his Washington Examiner response to Lithwick. (Update: At the Volokh Conspiracy, Jonathan Adler also takes issue, in detail, with “Lithwick’s caricature.”)
Lithwick maintains that the “Roberts Court”—the Court that issued such rulings as, say, Boumediene v. Bush (aliens detained at Guantanamo as enemy combatants have a constitutional right to challenge their detention through a habeas corpus proceeding in federal court) and Kennedy v. Louisiana (death penalty for crime of raping a child always violates the Eighth Amendment)—“is a fundamentally conservative creature and will remain that way for the foreseeable future.” I would maintain, to the contrary, that no Court on which Justice Kennedy provides the decisive vote—the same Kennedy who wrote and/or voted as he did in cases like Planned Parenthood v. Casey, Lawrence v. Texas, Boumediene, Rasul, Hamdan, Lee v. Weisman, and various Eighth Amendment/death penalty cases—can plausibly be described as “fundamentally conservative.” (For similar reasons, I don’t think it’s fair to Chief Justice Roberts to refer to the current Court as the “Roberts Court.”)
Lithwick even asserts, parenthetically, that Justice Sotomayor “is generally expected to move the court to the right in some areas.” I don’t know which areas Lithwick has in mind—I’m guessing some criminal-law issues on which the Court has not been divided ideologically—but I don’t think that anyone expects that Sotomayor will be to Kennedy’s “right,” and provide the decisive fifth vote, in any case that divides the Court on a basic matter of judicial philosophy.