Uncertain Justice: Understanding the Roberts Court

June 2
UncertainJustice

There’s a magic to it, a power that always sends a chill down my spine.  The bell chimes.  The velvet curtain rustles.  The marshal chants, “Oyez! Oyez! Oyez! … God save the United States and this Honorable Court!”

Nine black-robed justices appear, all together, arrayed behind an arced bench that lets every one of them face arguing counsel. The air thickens with tension, and a few of the justices crack jokes under their breath. Then the chief justice speaks from his center seat: “I now have the opinion in,” and he names a case.

Then he or one of his colleagues talks about an opinion they’ve written. And as that happens, the law is suddenly different. The Constitution is different. Our lives are different, and so are the possible futures that spin out before us.

The work of our highest court is the subject of my latest book, “Uncertain Justice: The Roberts Court and the Constitution,” co-authored with Joshua Matz. Whether you’re a law student, an interested citizen, a political junkie, or a seasoned scholar, “Uncertain Justice” has much to offer. It provides a comprehensive, even-handed and accessible survey of the Roberts Court’s leading decisions, narrated with an eye to telling some fascinating stories and revealing how personalities, politics and principles react in the Marble Palace.

* * * *

Since Roberts’s confirmation as chief in 2005, the Court has issued a battery of landmark rulings, forever changing the law of guns and campaign finance, war powers and privacy, immigration and affirmative action. Its opinions about Obamacare, the Voting Rights Act and the Defense of Marriage Act are self-conscious landmarks in our constitutional history.  Even many decisions in which all nine justices agree on the outcome generate a flurry of separate opinions pointing in diverse directions, and the impassioned dissents inspired by the most controversial rulings have much to teach about what the Court might later do.

All these opinions, written by nine fiercely independent men and women, grapple with deep questions of law, history and politics, and they speak to the public about our basic values. They hint at what the future holds, reshape our national conversation, and decide how quickly and broadly the law will reshape our lives.

For good reason, Americans want to understand the Court. Usually, they are well-served by excellent sites such as SCOTUSblog and How Appealing, and a stellar national press corps.

Too often, though, the wondrous complexity of the Court is lost in translation, brushed aside in a race to vilify, or traded for simpler, flatter stories. The tale is reduced to fights between “liberals” and “conservatives,” “originalists” and “living constitutionalists,” and “restraint” versus “activism” or “engagement.”* Who hasn’t read an article that reduces the whole Court and all of its works to nothing more than five conservatives pitted against four liberals (or 4 to 4 with a wild card)? In just the past month, the NY Times, USA Today and the Economist have printed versions of that story — and we can expect many more as the 2013-14 term concludes.  We’ll also see more stories that emphasize religious divisions, explain the Court’s work mainly in terms of ideological and partisan factors, and denounce the Court as blind to reality.  Google “Roberts Court” and you’ll get many versions of the Certain Truth, each presented with an unsubtle hint that any reader who doesn’t agree must be a fool or a knave (or both).

While there is plainly a role for such work, most of the purported “certainties” about the Roberts Court that currently stalk the land are misleading. The justices are too diverse, the Constitution too capacious, and the Court’s role too complex to yield to such reductionism. The story of the Roberts Court is a lot more interesting and more fraught with surprise, treachery and internal disagreement than such too-tidy plot lines suggest.

For instance, just consider the usual partisan 5-4 story: (1) in many areas of law, including free speech, privacy, unconstitutional conditions and Confrontation Clause cases, it is mostly useless; (2) it does little to explain when and why justices might vote against presumed type, as Roberts did in the health-care case, Roberts and Kennedy did in the Arizona immigration case, and Breyer did in the Michigan affirmative action case; (3) it papers over major differences in how broadly and quickly particular justices on each side of the split want to move the law, such as the huge divide in the recent legislative prayer case between Scalia/Thomas and Roberts/Kennedy/Alito; (4) it gives little credit to the distinct reasoning that each justice brings to bear — even when those statements heavily affect public discourse, as we recently saw after Sotomayor’s widely discussed and powerful dissent regarding affirmative action; and (5) as Noah Feldman showed in “Scorpions,” his brilliant biography of four FDR-appointed justices, these partisan divides tend to stretch and break over time, as new and unforeseen issues arise that inspire different reactions.

The 5-4 view isn’t merely inadequate; it can also be dangerous. When a generation of young lawyers is raised to see law as nothing but politics by other means, and when even some justices start repeating the view in public, it may prove self-fulfilling.

Bucking that trend, our goal was to tell the story of the Court from the ground up, taking seriously the intriguing differences among the justices’ substantive views of liberty, equality, and how law should relate to social and technological change; their frequent (and frequently overlooked) departures from familiar splits; and the possibility of thereby learning a lot that has been missed by others.

We sought neither to praise the Roberts Court nor to bury it, but rather to paint a more lifelike picture of that profoundly important institution. And we soon discovered that in every area of law — free speech, campaign finance, gay rights, privacy, presidential power, and more — there remained amazing tales to be told, stories of nine people with remarkable power disagreeing in good faith over the most important issues of our time.

“Uncertain Justice” strives to draw a complete, accessible portrait of the Court.  Drawing on history, literature, pop culture and some baseball, it blasts apart a fair bit of “conventional wisdom” in service of a more accurate and thrilling account of how the perspectives and philosophies of these nine men and women make our basic law.

* * * * *

I’m grateful to the VC for allowing me to guest-blog this week about some of the topics in “Uncertain Justice.”

In further posts, I’ll draw on the book to talk about why both this Court’s pro-speech reputation and the theory that the justices rule mostly for speech they personally agree with miss the mark; the special interest this Court has taken in government coercion; how it has blended concerns of equality and structure in rulings on gay rights and race; and how it is dramatically transforming the role courts play in American life.

I look forward to my time here and to all of your comments!

* “Engagement” is a word libertarians prefer in explaining why conservatives nominally opposed to “activism” can be unabashedly activist while pursuing libertarian goals.

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