How the Roberts Court disguises its conservatism.

The law, lawyers, and the court.
Oct. 4 2010 6:41 AM

Watch as We Make This Law Disappear

How the Roberts Court disguises its conservatism.

(Continued from Page 1)

Trick 2: Misdirection

Every great illusionist masters the skill of directing attention away from what's really happening and toward some diversion. That's the pretty magician's assistant in the short cocktail dress. The flapping snow-white dove. The magician's patter.

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If the Roberts Court has honed a single skill, it's misdirection: While we are watching the term's "big" cases, it works its magic on the ones we aren't paying attention to, which often matter more. In this enterprise, the court is aided and abetted by the media. It's the media that decide—often in advance of the term's October opening—which cases will be the marquee ones. Perhaps unsurprisingly, journalists pick those cases based on the best narratives: the teenagers sentenced to life without parole; the gun owners who cannot protect themselves in their own homes. But these cases, while sexy, often are not the ones that matter most to the long-term conservative agenda.

The conservative justices know full well which cases are in the spotlight. They have made an art form of ducking trouble in those big cases while changing the law in the ones below the radar. For example, in 2009 the justices had the opportunity to strike down significant portions of the 1965 Voting Rights Act, one of the most transformative pieces of civil rights legislation in American history. The act bans racial discrimination in voting practices. It has been reauthorized by Congress five times, most recently in 2006, in an overwhelmingly bipartisan vote, based on thousands of pages of congressional findings that the legislation was still vitally important. In a 2009 case called NAMUNDO, some Texas residents challenged the part of the act that requires jurisdictions with histories of racial voting discrimination to obtain "preclearance" before implementing new voting rules. The preclearance measure was enacted because in the 1950s and '60s, courts would invalidate voting practices in the South, only to watch them be replaced with new rules designed to impede black voters.

NAMUNDO looked like a classic "stacked deck." The jurisdiction seeking to avoid being "precleared" was an itty-bitty little utility district in Texas with no history of voting discrimination. In fact, it didn't even exist until the late 1980s. Based on the justices' questions at oral argument, most speculated that the Roberts Five planned to use the bizarre facts of the case to gut key provisions of the landmark civil rights law. But imagine those headlines: "Court Strikes Down Voting Rights Act!" When it became apparent everyone was watching NAMUNDO, the justices ducked. In an opinion widely described as the court being "statesmanlike" and "dodging a bullet," the justices resolved the case, 8-1, on very narrow grounds that ensured that small jurisdictions such as the Texas utility district in question would have an easier time opting out of the preclearance requirement. At the same time, the opinion made a point of warning Congress that the Voting Rights Act stands on shaky ground.

This has happened repeatedly with the Roberts Court: The case everyone is watching ends with a fizzle. It occurred again last spring with a case seeking to eliminate the agency Congress set up after Enron to avoid accounting fraud. If the agency had been eliminated, in the midst of a cruel recession and widespread disgust with Wall Street, it would have been big news. Guess what? The agency was spared. The court identified some problems with the agency, but they are subject to an easy fix.

Like the illusionist's hands, it's the cases you don't see that you should be watching. While the court wasn't striking down the Voting Rights Act, it was deciding Ashcroft v. Iqbal, a case you probably haven't heard about (unless your name is Ashcroft. Or Iqbal). It was ostensibly a war on terror case: A Muslim man caught up in immigration sweeps after 9/11 tried to sue two Bush administration officials for the abuse he suffered in detention. The court dismissed his claims, and in so doing it narrowed the doorway into the courtroom for the rest of us. For more than a century, under what's known as the system of "notice pleading," plaintiffs could launch a lawsuit with a bare-bones recitation of the claim they sought to pursue. This would force the other side to allow sufficient discovery to learn the facts of the case. After Iqbal, plaintiffs now must allege things they may not even be able to find out—about their employer, or the government, or a polluter. Then judges get to decide whether the claim is "plausible." If they think it's not, the case gets tossed. In the year and a half since Iqbal was decided, federal judges have reportedly been able to dismiss literally thousands of lawsuits—especially civil rights and employment claims—before they have a chance to begin.

Because we tend to fall in love with the compelling life stories contained in the "blockbuster" cases, we often ignore these hypertechnical, jargon-laden cases that may not make headlines. Especially when, as in Iqbal, the plaintiff was a Muslim TV installer. But the under-the-radar cases matter. Iqbal, Twombley, Garrett, Gross, Rapanos, Rent-a-Center. Maybe you haven't heard of most of those. But these are the cases that, read together, are making it harder and harder for everyday litigants to walk into a courthouse and hold unscrupulous employers, manufacturers of defective products, or polluters to account.

Trick 3: Restoration

Illusionists destroy things. Then they put them back together. Money, art, furniture—all are torn asunder, and then, voilà, magically they are restored to their original state. But not really, of course. Usually the thing the audience sees at the end of the trick is not the same as what was there at the beginning. It just appears to be.

The Roberts Court strives hard to make the new seem old. Why? Because if everything is just as it was before, it can't be accused of changing the law. In a sense, this is the way of the judge: Prior precedents are offered up to justify every decision. Nothing is ever entirely novel. The difference today is that the justices aren't really following the old rules; they just create the illusion that they are.

For sheer chutzpah in restoration, the chief justice's opinion in Parents Involved in Community Schools v. Seattle School District No. 1 probably deserves some kind of award. The question in that case was whether school boards can take race into account in assigning grade-school students to their schools. Not to segregate the schools, mind you, but to re-integrate them. Seattle, like many places in the United States, faced the problem of residential housing patterns effectively segregating the schools.

The chief justice's answer was that such policies violate the Constitution. Always. This is one of his most passionate moral beliefs; as he puts it: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Standing alone, that's perfectly fine. People of good faith can disagree about using race-conscious measures to remedy racial disparities.

But in Parents Involved, Roberts had a problem: precedent. Just a year before he took the bench, in the University of Michigan affirmative-action cases, the court had determined that, in effect, it was OK to make admissions decisions on the basis of race in an effort to stop discrimination on the basis of race. So how could he insist, only a year later, that such measures were unconstitutional when applied to younger students?

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