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?

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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."

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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.

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