A Supreme Court Conversation
Oh please consider forgoing the disembowelment. If a typo is the worst mistake you have made in six years at Slate, you are in far better shape than the rest of us. And for what it's worth, I have no notion of the correct number of Horsemen Notre Dame ought to have, although I'll warrant symmetry would argue for four or 10.
I know we'd planned to talk a bit about Brown today, and I am really looking forward to hearing your thoughts. But I wonder if we can also pan way back for just a moment before we dig into the two schools cases that will come down tomorrow. There is a strain running through the liberal commentary about the Roberts Court that is troubling to me, and I wanted to hear your thoughts on it. When we first started this dialogue, I suggested that court watchers are in agreement that the Roberts Court is polarized and ideological that it's never been clearer in my own lifetime that who sits on the court matters more than what "the law" says. But what's started creeping into others' analyses along these lines is that what's changed most about the high court is that the Roberts Five are just plain "mean."
I love to read Robyn Blumner, but her new column on the black, black hearts of the court's five conservatives is amazing in that it both goes that far yet voices a sentiment that many others have expressed to me in recent months: "The addition of Chief Justice John Roberts and Justice Samuel Alito to the heartless duo of Justices Antonin Scalia and Clarence Thomas has cemented a plurality for cruelty. If there's a choice between casting a lot for the little guy, tipping a case toward compassion or putting a foot on his throat, it's a safe bet that these four will be getting out their jackboots." The St. Petersburg Times similarly describes the recent ruling in Bowles (the appeal of the Ohio inmate who missed a filing deadline because he followed the erroneous orders of his judge) as "heartless." Bill Scher derides the Roberts Court's elitist and unresponsive agenda, poised to impose "one group's version of morality" upon the country.
I think you and I agree that name-calling and hyperbole are not the best way for us to talk about law and policy. (Although hats off to Elizabeth Edwards for being willing to take on such garbage on the merits.) But it seems to me that what's undergirding this liberal outrage—over the breakneck speed with which the Roberts Court has sought to slam the courthouse door on criminal defendants, workers, women, environmental groups, students—lies a deep frustration. We somehow saw this "mean court" coming and did nothing, because we didn't know quite what to do. So Andrew Cohen blames the mainstream media for being "pathetic" during the confirmation hearings. And Linda Greenhouse recently observed that the senators' relentless focus on "stare decisis" and "super-duper precedents" during those confirmation hearings was basically pointless. But while conservatives are crowing this week over what's gone so right on the Roberts Court, very few liberal critics have come up with suggestions of how it could have been prevented.
Now maybe the Roberts Five really are bilious and rageful. In which case I guess we should call them that. But I didn't think calling conservatives "mean" was a smart tactic during those confirmation hearings, and I don't think it's smart now. Still, I am struggling now as I was back then to define what judicial quality Roberts and Alito seemed to lack.
You made an interesting point this week to this end when you wrote that without Sandra Day O'Connor anchoring the court, it's quickly become more "doctrinal" and that there "seems to be no one on the court to offer some pragmatic resolution to difficult, contentious issues." So is that what the court needs today? More pragmatists? Some of the Fray posters have suggested it simply needs fewer lawyers. Or perhaps it just needs fewer lawyers who came up (forgive me) through the executive branch? I have come to believe that it definitely needs more women and people of highly divergent life and career experiences—and no, Harvard vs. Yale law schools is not "highly divergent." But is there a name for this thing we liberals want to see more of on the court? Something that isn't merely the opposite of "mean"?
My view is that focusing on a judge's personal "niceness" or "compassion" or affection for "the little guy" is a mistake. That's not a legal theory so much as what I look for in a babysitter. I think that the meanness we're seeing, to the extent you can call it that, has to do with the Roberts Court's very cramped and unforgiving view of the role of courts. I once wrote that Roberts seems to believe that there was "no problem too big for the courts to ignore." I wonder if that is part of the sea change we are witnessing.
Maybe this is all too big a question to resolve in a clutch of e-mails, but I do believe that it's long past time for liberals to engage in a very serious conversation about what we believe has gone wrong with this Roberts Court, and what qualities—beyond niceness—we want our next justices to have.
Yours in frustration,
Dahlia Lithwick writes about the courts and the law for Slate.