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"?
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.