Friedman and Lithwick on the Supreme Court’s Magic Tricks

Some recommended reading for a rainy Monday morning (in Baltimore, that is):  Barry Friedman and Dahlia Lithwick have written an insightful piece for Slate entitled “Wach as We Make This Law Disappear: How the Roberts Court disguises its conservatism.” They explore the Court’s various tactics to disguise its ideological bent and maintain the illusion of umpire-like judging.  They write:

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.

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6 Responses

  1. I think the illusionist metaphor really doesn’t work, and the 5 “tricks” fall flat. See

  2. Brett Bellmore says:

    “How to explain the justices shoving the law rightward, while everyone thinks it is dead center or too far left?”

    The most obvious explaination would be, that they’re shoving the law rightward from a starting point well to the left of center, and thus, while the law is trending rightward, it is none the less lagging behind the rightward drift of American public opinion.

  3. Orin Kerr says:

    Danielle, can you elaborate on why you are recommending the article? I thought its core thesis was extremely unpersuasive, as both Brett and Josh are suggesting. For what it’s worth, I blogged my own thoughts here:

  4. “…and Dahlia Lithwick have written an insightful piece for Slate…”

    Heh – good one!

    …when the first decision they cite is our very own Shatzer – wherein not a single Justice wrote a dissent – it’s kind of hard to remember what the point of the article is. Is she arguing that the case was wrongly decided? Or does she think that the Court’s decision to hear the case was kind of “unsporting” given the facts were so overwhelmingly unfavorable for Shatzer?

    Coupled with her recent comments on Ms. Angle, this piece just feeds the image that Ms. Lithwick is probably currently incapable of providing any kind of coherent insight on our Constitution.

  5. Hans says:

    The Supreme Court is liberal, not conservative.

    It routinely overturns lower court rulings in favor of employers. A classic example is Chief Justice Roberts’ opinion in Burlington Northern v. White (2006), which favored Title VII plaintiffs by adopting a definition of retaliation broader than any circuit but the Ninth Circuit’s.

    Other rulings in the Roberts and Rehnquist Courts exemplify that pro-plaintiff trend, like Kolstad v. American Dental Association (rejecting limits on punitive damages in Title VII cases accepted in every circuit but the Second Circuit, and accepted even in the Ninth Circuit in its Ngo decision) and Harris v. Forklift Systems (1993) (overturning lower courts’ requirement of psychological or other tangible harm for harassment suit).

    The Supreme Court’s Booker/Blakely line of cases overturned tens of thousands of criminal sentences.

    Even exhibit A in the liberals’ case that the Supreme Court is supposedly conservative — Citizens United — isn’t particularly conservative in its effects. Citizens United will likely benefit labor unions more than corporations in the long run. (Citizens United said that independent expenditures by both labor unions and corporations were protected. Labor unions give almost all their donations to Democrats. Corporations split their giving more evenly).

  6. Doug Richmond says:

    I generally like Ms. Lithwick’s writing. I am a moderate and deeply regret the Roberst and Alito appointments, with which I was fine at the time. Still, I did not find the article persuasive.