Watch as We Make This Law Disappear
How the Roberts Court disguises its conservatism.
Updated Monday, Oct. 4, 2010, at 6:41 AM
Here, the remarkable feat was of restoration: To justify his opinion in Parents Involved, Roberts claimed it was required by Brown v. Board of Education. Brown? That was the landmark 1954 case prohibiting segregation. As Justice John Paul Stevens said in response to the Roberts opinion, there was "cruel irony" to the court using a case about segregation to prohibit integration. Still, the chief justice stuck to his restorationist guns: "The position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: '[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of color or race.' "
As it happened, in the school case Roberts got only four clear votes; Justice Anthony Kennedy wrote alone to say that race sometimes could still be taken into account (although as is so often the case in Kennedy's race opinions, it is hard to imagine when that might be). But other restorations have been more successful. In their stunning decisions striking gun ordinances on the basis of a constitutional right to bear arms for self-defense, the conservative justices claim this is what the Constitution required from the start. Not so: As the vast majority of historians will confirm, the right to bear arms originally existed for precisely the reason specified in the Constitution: "A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed." How many homeowners with handguns do you know who are in a militia?
As Justice Stephen Breyer explained in his dissent in the school case, the Roberts opinion subverted the legacy of Brown while claiming to honor its spirit. That's the problem with restoration. Sometimes it is difficult to tell the original from a well-crafted fake.
Trick 4: The Escape
Think about illusionists, and you almost instantly imagine escape. The greatest can be locked into a straitjacket, immersed in a tank of water, padlocked with metal seals, and still they get out. Roberts and Justice Samuel Alito found themselves in a similar bind. Having both pledged at their confirmation hearings that they would respect precedent, and had "no quarrel" with foundational cases and doctrine, they were locked into a legal universe that for them would quickly become airless. Given their troth, they couldn't just come on the bench and start overruling old cases—even cases they hated—willy-nilly. So they worked at the illusion of escape: Overrule the old precedent anyway, but claim to be leaving it intact. Where "restoration" involves pretending to put the law back where it originally was, "escape" means running away from existing precedents while denying you are doing so.
Perhaps the best example of The Escape came in a 2007 campaign-finance case. Americans have heard a lot about campaign-finance law this past year, as a result of the court's dramatic decision last January in Citizens United. That decision overruled prior precedents allowing Congress to restrict corporate money in elections and earned a national shout of disapproval. But what you probably don't know is that the court had already accomplished virtually the same feat, by the same 5-4 margin, in the 2007 case Federal Election Commission v. Wisconsin Right to Life. Unlike the Citizens United case this year, however, in which the justices announced the change out loud, in Wisconsin Roberts claimed to be following precedent when he was shredding it.
This trick has been used so frequently that conservatives and liberals alike came up with a name for it: "stealth overruling." In the Wisconsin decision, the chief justice's usual conservative ally Justice Antonin Scalia accused Roberts of "faux judicial restraint" for implicitly striking down an old case while claiming to do nothing of the sort. Conservative critics from Robert Bork to Richard Posner have been equally derisive.
Trick 5: Sawing the Lady in Half
Roberts is keen to deny that ideology plays any role in the court's work. During his confirmation hearing, he used the now-famous umpire analogy to explain that his job was calling balls and strikes, not taking the field on behalf of one team or another. His tenure has indeed been characterized by many unanimous decisions. After the media focused on a sharp uptick in 5-4 decisions along ideological lines during Roberts' second term, there was a noticeable drop in such splits the following years. He may just be an umpire, but he has his eyes on the stats. Can the court really be called "ideological" if cases are decided by 6-3 or 7-2 votes?
How does the chief justice work to maintain the illusion that political ideology is not present on the Supreme Court while at the same time taking sharp steps to the right? He uses the illusionist's most famous trick of all: sawing the lady in half right before the audience's eyes. The Roberts court does some of its boldest work in cases where the ideological left splits internally, allowing the right to say that the issue is not ideological at all.
Failed illusions are never so ugly as when this particular one goes wrong and the table saw cuts through the unwilling victim. But that's what happened in January, when the justices handed down their Citizens United decision. The decision earned the conservative justices a public rebuke from the president and steady flogging in the media. Polls show overwhelming numbers of even Republican voters think the court got it wrong.
How did Roberts, who has been so careful to keep his court out of this sort of trouble, blow it so badly? Because he thought he could saw the lady in half safely. As Adam Liptak reported in the New York Times before the decision, "The case has ... deepened a profound split among liberals, dividing those who view government regulation of political speech as an affront to the First Amendment from those who believe that unlimited corporate spending is a threat to democracy."
Though the reaction to Citizens United went south, there are plenty of other cases in which the strategy of slicing off part of the left worked just fine. Take the issue of gun rights. A core of left-wing intellectuals joined hands with the right in supporting the gun-rights decisions in Heller and McDonald. They thus contributed to the sense that these decisions were acceptable to liberals.
This trick works just as well whether the conservative justices are splitting apart left-wing interest groups or their own colleagues on the left side of the court. In another of the decisions whittling Miranda away, Florida v. Powell, Roberts shrewdly gave the nod to liberal justice Ruth Bader Ginsburg to write the court's decision, which cut back on what rights the suspect must be read. In this term's Holder v. Humanitarian Law Project, the court split 6-3 by nabbing the only veteran on the left, Stevens, for a ruling upholding the statute banning "personnel" and "training" support for organizations designated as foreign terrorist organizations, even if all the support really was humanitarian.
Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law and the author of The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. He is currently writing a book on the Fourth Amendment.
Dahlia Lithwick writes about the courts and the law for Slate.
Photo illustration by Holly Allen using photographs of John Roberts by Mark Wilson/Getty Images and a magician by Chepko Danil Vitalevich/Shutterstock.