Spoonfuls of Sugar
Americans' continued love affair with the John Roberts Court.
Next week, the Supreme Court will begin its 2009 term, secure in the knowledge that it remains almost completely misunderstood by the American public. A Gallup poll conducted this month showed the court's current approval rating to be higher than it's been in a decade: As of now, 61 percent of Americans approve of the high court's performance. Last year, that number was slumping at 50 percent.
Fifty percent of Americans currently believe the court is neither too liberal nor too conservative; that's up from 43 percent last year. And the number of Americans who believe the court is too conservative has dropped from 30 percent to 19 percent.
All this lavish new public affection for the court's moderation came the same week the court was hearing a hugely important case that may dismantle a long-standing system of campaign finance restrictions—including a ban on direct federal campaign spending by corporations that has existed for a century. But the issue in Citizens United v. Federal Elections Commission, is not limited to the constitutionality of the McCain-Feingold campaign finance reform law. The reason court-watchers got themselves so worked up about this case is that it squarely tests Chief Justice John Roberts' stated commitments to preserving precedent, deference to the elected branches, and issuing narrow rulings instead of sweeping ones.
Oral argument in the Citizens United case revealed that the court's five conservatives feel nothing but contempt for campaign finance regulations that demonize corporations, restrict core political speech, and—to quote the chief justice—"put our First Amendment rights in the hands of FEC bureaucrats." Trying to square the tone of that argument with the Gallup poll results of the same week requires ignoring either one or the other almost entirely.
But that's where the public confusion kicks in. Because a similarly dramatic oral argument in a seminal voting rights case last term revealed a majority of the court that was almost as sneeringly contemptuous of the onerous "preclearance provision" in Section 5 of the landmark Voting Rights Act as it is of McCain Feingold. Yet the court surprised everyone last spring and instead of the widely expected decision striking down the provision, the court close-read the statutory language to make it easier for jurisdictions to wiggle out of their preclearance obligations. The same was true in another potentially explosive case involving alleged reverse discrimination against white New Haven firefighters. After a blistering oral argument, the court declined to gut the test requiring a showing of "disparate impact" in such cases and instead minted a brand-new test for cities that are worried their tests are racially discriminatory. We saw the same result in a school strip-search case—again argued in full high dudgeon at the court—and again decided on very narrow, case-specific grounds.
All this hardly meant the 2008 term was a triumph for liberals at the high court. On balance, the term continued a clear trend 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. How, then, to explain the new poll numbers showing 49 percent of Republicans believe the Robert Courts is too liberal and 59 percent of Democrats believe the court is "about right"?
Dahlia Lithwick writes about the courts and the law for Slate.