I feel slightly guilty spending more than a few seconds thinking about this Slate article by Barry Friedman and Dahlia Lithwick trashing the Roberts Court, especially since Ann Althouse and Orin Kerr (among others) have already made sound criticisms of it. Yet there are more depths to plumb.
Note, first, that Justices Ginsburg, Breyer, and Sotomayor joined Justice Scalia’s opinion for the Court in full. So if the justices are leaving Miranda an empty shell F&L have bigger problems than the Court’s four and a half conservatives. Second, F&L’s own narrative suggests that the public, if it knew the facts of the case, would have approved the Court’s decision. So (on F&L’s own account) there seems to be some public ambivalence about Miranda. What’s deceptive or underhanded about both leaving Miranda intact and issuing the ruling the Court did in the case? Are we to suppose that public opinion is deceiving itself?
2. The Court is further accused of (intentional) “misdirection” because in some high-profile cases it has refrained from issuing far-reaching conservative opinions–it did not strike down controverted sections of the Voting Rights Act, for example–while in less-publicized cases it indulges its conservatism. F&L do not come close to demonstrating a pattern here, since that would require them to at least take account of low-profile cases that conservatives lost. Leave that aside. In judging this accusation and many of F&L’s others, stop and ask yourself what the authors’ reaction would be if the Court had done the opposite. If the Court had struck down parts of the Voting Rights Act, do you suppose they would be cheering its forthrightness? Or would they be saying that a brazenly conservative decision in a high-profile case demonstrates the irredeemably right-wing nature of the Court?
4. I’m going to pass over F&L’s fourth type of trick since, as far as I can tell, it’s identical to the third.
5. The conservatives on the Court “saw the lady in half” by exploiting divisions among liberals. When some liberals on or off the Court take the conservative side of an argument, the conservatives on the Court–wait for it–welcome their support. The fiends! What, pray tell, is the alternative? Should Roberts not have assigned the Florida v. Powell opinion to Justice Ginsburg on the principle that she is allowed to write opinions only when she lines up with orthodox liberalism as defined by F&L?
Anyone trying to discern the logic underlying this article will quickly find himself wandering in a hall of mirrors.