Spoonfuls of Sugar
Americans' continued love affair with the John Roberts Court.
In part, these numbers reflect a continued public focus on the wrong data; we continue to believe too much in the court we see on TV. Thus, the highly charged confirmation hearings of Justice Sonia Sotomayor this summer contributed to the widespread belief that the court would be swinging leftward, even though it's clear that her substitution for Justice David Souter will do nothing to alter the balance of the court. (Indeed, she is generally expected to move the court to the right in some areas.) Similarly, the court's refusal to go all the way in the big-ticket civil rights cases last year leads to the broad perception that the court is really quite liberal. It's not. We pay a great deal of attention to the dramatic cases at the court. But the drama is in the little cases, the unmistakable trends that rarely provide you with breathless headlines.
To be sure, progressives who claim that the court's eventual ruling in the recent campaign finance fracas will conclusively reveal the heart of darkness that lurks inside the Roberts Court may also be overstating their case. It's true that the Roberts Court is a fundamentally conservative creature and will remain that way for the foreseeable future. But as we learned last term, and may soon learn again, it's a court that is deeply aware of, and even responsive to, public opinion.
Americans looking for big drama from the Roberts Court may continue to miss the small revolution. This is a court willing to reverse the Warren Court revolution with a tablespoon instead of a wrecking ball, and that may never be captured in public opinion polls.
The term that opens next week promises to provide another fistful of cases that will slowly deepen our understanding of the Roberts Court. Among the cases the court is poised to review is yet another challenge to a cross on government property (raising questions about who has standing to be offended by religious symbols), a novel dispute over the constitutionality of a federal statute criminalizing depictions of animal cruelty, questions about whether juveniles can be sentenced to life without parole, another hot eminent domain case, and maybe even a quarrel over whether the name Washington Redskins is offensive. The court is also considering whether to take on a pair of cases that would have it decide whether the 14th Amendment applies to or "incorporates" the Second Amendment against the states. If the murky tea leaves are correct, we may also see another confirmation hearing next summer.
As a generation raised on a diet of reality television and the inevitable "big reveal," we will continue to look to the high drama of oral argument and the staged fireworks of judicial confirmation hearings for our broad views about the Supreme Court. What we often forget is that what really happens at the high court in the coming years will continue to happen by the tablespoon. We're just too absorbed by the largely imagined wrecking balls to see it.
A version of this article also appears in this week's issue of Newsweek.
Dahlia Lithwick writes about the courts and the law for Slate.