Legal Commentary

I like both Dahlia Lithwick and Barry Friedman, but I was really disappointed in their latest article for Slate.  In "Watch as We Make This Law Disappear", Friedman and Lithwick endeavor to explain to the average Slate reader how the Supreme Court has managed to hide its conservatism.  The average Slate reader probably reads the New York Times, and (if so) would be surprised to hear that the Supreme Court is not conservative.  Nevertheless, Friedman and Lithwick maintain that the average American is confused about this.  They argue:

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.

The Friedman/Lithwick conceit is that the Roberts Court, and the Chief Justice himself, are magicians concealing their conservatism from unsuspecting citizens.  There are two problems with this thesis: (1) the Roberts Court isn't really hiding anything, and (2) they present no evidence that the people would be horrified, even if the scales were to drop from their eyes.  A few examples are instructive.

One of the projects of the Roberts Court, according to F/L, is to get rid of Miranda.  They claim:

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.

Of course, the problem with this is that the "people" -- as well as the Court -- can have it both ways.  They can have Miranda as the general rule and still make exceptions in extreme cases.  Friedman and Lithwick, however, don't see it that way.  They cite Maryland v. Shatzer as a case in which the Court is dealing a serious blow to Miranda.  But -- as the 9-0 result makes clear -- allowing the Miranda request for an attorney to dissipate over two-and-a-half years is not eviscerating Miranda.  Even Stevens concurred in the judgment on this basis.  But F/L are alarmist:

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.

Look, if you think Scalia's majority opinion eviscerates Miranda, then explain.  But I don't see how Shatzer's loss eliminates my Miranda rights -- unless it's my right to exclude my confession two-and-a-half years after I asked for an attorney.  Is Miranda really a facade because of Shatzer?

Friedman and Lithwick sometimes seem to claim that the Court is bound by past precedent, as in this exchange: 

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.'

That's grossly misleading to a non-legal reader.  It implies that the Court cannot legally overrule itself.  At another point they argue:

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.

Again, this implies that the Court's jurisprudence is somehow set in stone -- or at least the Warren Court's jurisprudence.  But then, the thoughtful reader might wonder, how did the Warren Court itself set all those precedents?

Friedman and Lithwick make it clear that they equate "conservative" with bad/wrong, as in this passage talking about cases where a "liberal" justice joined the majority:

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.

Friedman and Lithwick don't seem to buy the possibility, however, that these conservative results are actually within the mainstream of American political ideology.  Ultimately, to buy Friedman and Litchwick's arguments, you have to buy their parade of horribles:

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).

I think some of these -- particularly the last one -- are oversimplified.  It's not clear to me, though, that the public really disagrees with any of these.  And if these results aren't so horrible after all, then perhaps that's not a magic trick -- it's just a popular approach to constitutional jurisprudence.

UPDATE: Orin Kerr discusses the direction/location distinction.