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 3)

Don't be fooled by the fact that the lady in the box looks like she has been split down the middle. These are all still conservative results. When the trick is over, these results—just like the lady—are going to climb down off that stage and start working their way in the world.

Are we spoiling the magic?


It ruins the mystery when the illusionist's tricks are revealed. Secrecy is so important that magicians take a sacred oath never to do so.

The chief justice isn't really an illusionist, though, and the Supreme Court is not theater. It's real life. Today, because of the Roberts Court's decisions, state and local governments face greater obstacles to integrating their schools and getting guns off their streets. Second-term abortions are harder to get and often more expensive. Injured plaintiffs are tossed out of court without any sort of hearing. Criminal defendants? Forget about 'em (the court has).

None of this should come as a surprise. From the point of view of the conservatives on the court, it's precisely the point. They know that with a wave of their legal wand, they create and destroy rights and responsibilities, as surely as a magician can pull a rabbit out of his hat.

In fairness, it's not just the illusionist who is to blame. Magic works because the audience so desperately wants to be fooled. The American public seems to want to believe in the myth of a nonideological Supreme Court, all evidence to the contrary notwithstanding Then there's the media: Looking really closely at just five cases each year—the girl in the cocktail dress—is easier than seeking out the nuanced sleight of hand.

The problem is transparency. The justices are entitled—indeed, obliged—to decide cases as they see fit. In that sense they really are umpires, and judicial independence is an important part of the American system. But independent should not be considered synonymous with invisible or unaccountable.

Tricks and illusions are fine, great even, as popular entertainment. But when it comes to "equal justice under law"—the words etched on the front of the Supreme Court—"now you see it" is vastly preferable to "now you don't."

Like Slate on Facebook. Follow us on Twitter.

Barry Friedman is the Jacob D. Fuchsberg professor of law at New York University School of Law and author of The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. Dahlia Lithwick is a senior editor at Slate and contributing editor to Newsweek.



Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.

Two Damn Good, Very Different Movies About Soldiers Returning From War

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Students Aren’t Going to College Football Games as Much Anymore, and Schools Are Getting Worried

The Good Wife Is Cynical, Thrilling, and Grown-Up. It’s Also TV’s Best Drama.

  News & Politics
Sept. 19 2014 9:15 PM Chris Christie, Better Than Ever
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
Brow Beat
Sept. 19 2014 4:48 PM You Should Be Listening to Sbtrkt
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Bad Astronomy
Sept. 20 2014 7:00 AM The Shaggy Sun
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.