Watch as We Make This Law Disappear
How the Roberts Court disguises its conservatism.
Updated Monday, Oct. 4, 2010, at 6:41 AM
It's dark and silent. Reporters trickle into the grand ceremonial room from a door on the left; like everyone, they've been instructed that no recording devices of any sort are allowed. A clutch of spectators, some of whom have been waiting for hours, enters at the rear. At 10 a.m. on the dot, never earlier and never later, the marshal utters her incantation: "The honorable, the chief justice and the associate justices of the Supreme Court of the United States." Then they file, from behind the velvet curtain, wearing long black robes; they sit behind a tall dais, sipping water from silver cups. Silent footmen glide back and forth bearing thick books. For the justices, it's a typical oral argument day, but if you didn't know better, you'd think you were watching the initiation into Harry Potter's school for wizards, Hogwarts; or, better yet, the Penn and Teller show at the MGM Grand in Vegas. Magic, mystery, and hush everywhere you look.
The metaphor is more than apt. There's another, newer, layer of illusion at work at the highest court of the land. Under the stewardship of its boyish chief justice, John Roberts, the court has taken the law for a sharp turn to the ideological right, while at the same time masterfully concealing it. Virtually every empirical study confirms this rightward turn. Yet recent public opinion polls indicate Americans continue to see a bench that is, if anything, a wee bit too liberal.
How to explain the justices shoving the law rightward, while everyone thinks it is dead center or too far left? The answer is that Roberts is a brilliant magician. He and his four fellow conservative justices have worked some classic illusionist tricks to distract us from seeing the truth. Roberts is likely the first chief justice to understand that the message matters as much as the outcome. He has played his role with consummate skill, allowing the law to shape-shift before our very eyes, even as he and his fellow conservatives claim that nothing is happening.
How does the Roberts Court work its magic in that marble mega-mall of the law? Here, revealed, are the top tricks of the illusionist Roberts Court.
Trick 1: Stacking the Deck
Magicians cut their teeth on card tricks. And the easiest way to woo a crowd is the time-tested one: stacking the deck. The Roberts Court has proven itself adept, brilliant even, at stacking the deck that is its annual docket. It does so by picking cases with facts so extreme that only one outcome seems possible. Then it uses those same reasonable-seeming decisions to push the law in conservative directions.
Just about all that most Americans learn of the Supreme Court's work is who won or lost—the outcomes of the cases. But the reason the court is so powerful is that its written opinions form the legal roadmap by which the rest of us must navigate our lives. So, while most of the public is fixated on the often gripping facts of the cases, and who won or lost, the court is writing legal tracts to govern our future.
Here's an example. The conservative justices hate Miranda v. Arizona, a case familiar to any American who has ever watched a cop show on TV ("You have the right to remain silent," etc.). The justices' problem is they can't quite overrule the decision. Why not? Because polls show about 80 percent of the country approves of the rule. Even Roberts' predecessor—the very conservative William Rehnquist, a confirmed lifelong Miranda loather—choked in 2003 when he had the chance to get rid of it. Miranda, he wrote, "has become embedded in routine police practice to the point where the warnings have become part of our national culture."
So, what's a conservative justice to do? Whittle and chip away at the rule any way he can, all the while denying that the rule itself is in jeopardy. But to do their whittling without getting caught, the Roberts Court has been brilliant at stacking the deck—choosing to hear only Miranda cases in which what the police did is so sympathetic, or what the suspect did so awful, it's impossible to side with the suspect. Then, while you're rooting against the suspect, they're getting rid of the rule that you thought you liked.
Take last term's Maryland v. Shatzer: Shatzer was accused of molesting his 3-year-old son by forcing him to perform fellatio and by masturbating in front of him. (You already hate the guy, right?) When the cops come to question Shatzer, he asks for a lawyer. The way Miranda works is that as soon as a suspect asks for a lawyer, all questioning must end, until he sees a lawyer. But in this case, the police get new evidence and come back and question Shatzer again, and he says something incriminating. Ordinarily his statement would be inadmissible: Miranda was violated. But—and here's where the court's genius at choosing cases shines through—it turns out Shatzer is already in prison for another crime when police question him the first time, and they don't come back to question him again for almost three years. They read him his rights again, and this time he blabs.
Can the Miranda rule possibly prevent police from questioning a suspect three years later? On these crazy facts, basically the entire court—all nine justices, conservatives and liberals alike—disagree with Shatzer's claim. You might say, who cares: Shatzer deserves what he gets and worse. But that's the point: It isn't just Shatzer who gets it. All of us do. Shatzer gets more time, and the rest of us get the magic disappearing Miranda rule. Many experts who follow the court closely on this issue will tell you that Miranda is today a façade. It looks nice from the street, but there is virtually nothing behind it.
Here's another example: Roe v. Wade. The conservative justices don't like it, but they can't simply overrule it because … well, there's that public opinion to consider, and this pesky legal issue known as "precedent." This time they whittled by taking a 2005 case, Gonzales v. Carhart, involving what in media parlance is called "partial birth abortion." The law bans late-term abortions in which the fetus is partially delivered before its brains are sucked out and skull collapsed. If you find it hard even to read that, you've caught the point: That's deck-stacking.
Having stacked the deck with these gruesome facts, no one noticed the major inroads the case makes on women's rights more generally. For example, Justice Anthony Kennedy's opinion is weirdly rooted in the notion that women share a "bond of love" with the fetus and many come to "regret" their decision. That's based on junk science; the evidence shows many women also regret being forced to carry an unwanted pregnancy to term. It's also naked paternalism: Those poor, confused women can't decide what is good for them, so the fatherly justices will. Post-Carhart, states have passed laws mandating that pregnant women be shown sonograms of the fetus before an abortion, or told they are aborting a human being, or informed they can't be coerced into aborting. Further, based on Carhart's seeming approval of junk science, Nebraska passed a law banning abortions after the 20th week, based on questionable medical evidence concerning fetal pain. See? Supreme Court decisions based on highly dramatic facts also affect those of us who live in a world with just ordinary facts.
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.
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.