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.

Photo-illustration. Click image to expand.
The incredible Chief Justice John Roberts

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.

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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.

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.

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?

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.

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."

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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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