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.
1) F&L complain that the Court makes conservative rulings in cases where the fact pattern is dramatic and seems to cry out for a conservative result, even if generalizing from the case would yield a bad legal rule. This “deck-stacking” is deceptive. (At least I think that’s their argument; they are to my mind unclear about what is objectionable in the Roberts Court’s rulings.) Their first example is Maryland v. Shatzer, which they describe as having made Miranda disappear in all but name. The Court is unwilling to take on Miranda because it is popular, but seized on the opportunity to chip away at it in this case–since it has a truly heinous defendant pushing a far-out application of the precedent.
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?
3. The Court supposedly practices a nefarious form of “restoration” when it pretends to be following precedent while actually changing the law. The main example here is Chief Justice Roberts’s strong stand against school districts’ attempting to promote integration by using race as a factor in assigning students to schools. Roberts claimed that this result followed from Brown v. Board of Education. Justice Breyer claims that it “subverted the legacy of Brown.” F&L’s argument boils down to the claim that Breyer is right and Roberts is wrong. My point isn’t that they don’t support this claim, although of course they don’t. It’s that they haven’t come remotely close to suggesting that anything deceptive took place. If they want to maintain that no knowledgeable person considering the question in good faith could possibly adopt Roberts’s interpretation of Brown, they need to make the case.
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.