COURT ORDER

It Isn't Tilting in The Same Old Ways

By Dahlia Lithwick
Sunday, June 15, 2008

With just two weeks left in the Supreme Court's term, everything we thought we knew about the Roberts court seems wrong. The question now is: Who plans to tell the presidential candidates?

Both Sen. Barack Obama and Sen. John McCain are finally beginning to campaign as though the composition of the Supreme Court actually matters. And that's a good thing, because -- the American public's lack of interest notwithstanding -- the court counts as much as almost every other issue facing the voters in November. Assuming that you work, worship, vote, parent, own property the government might covet or occasionally have sex, the high court will intimately affect your life. This is particularly true now that the average justice is older than Mount Rushmore and the next president may well have two or three new court picks in the space of a few years.

But it's hard to generate much public hysteria over nameless, faceless future jurists deciding nameless, faceless future cases. And so the court plods along undisturbed, like the tortoise, while presidential elections zoom by like the hare.

But the dialogue about the judiciary now taking place between the two presidential nominees is antiquated. (Bear in mind that in picking their way among the minefields of abortion, affirmative action, same-sex marriage and school prayer, presidential candidates tend to discuss the courts only in code.) Both McCain and Obama have now taken predictable stands on the Supreme Court of their dreams. In a speech last month, McCain offered a jeremiad about the evils of "judicial activism," deriding the "common and systematic abuse of our federal courts by the people we entrust with judicial power." Last March, Obama offered up his own judicial ideal: a judge with "enough empathy, enough feeling, for what ordinary people are going through."

The main problem: Both McCain and Obama start from the premise that the Supreme Court is tidily balanced among four conservative judicial minimalists, four liberal judicial empaths and the inscrutable Justice Anthony M. Kennedy, swinging away at the center. This is a useful model for trying to stir up public concern about the court's composition, and the decision in at least one blockbuster case -- last Thursday's ruling that the Bush administration is violating the constitutional rights of foreign terrorism suspects being held indefinitely at Guantanamo Bay, Cuba -- did indeed go down along the traditional lines. Still, the current term is rapidly proving the simple conservatives-vs.-liberals construct to be a thing of the past. This court term has revealed a series of patterns that aren't so easy to neatly file away: conservative moderation, moderate conservatism, liberal pragmatism and pragmatic minimalism. And that's just for starters.

Court watchers have stood dumbfounded all spring as the high court rejected and renounced the 5 to 4 conservative-liberal splits that seemed to have calcified after last term's bitter divisions. The end of June 2007 saw a full third of the court's cases decided by a 5 to 4 margin; as of this writing, the court has decided just four cases that way this year. At this point last year, Kennedy had cast his vote with the prevailing five justices every single time. But this term has seen a slew of ideology-busting unanimous, 7 to 2, and 6 to 3 decisions, which have not just baffled the experts but also made the usual end-of-term chatter about "activists," "minimalists" and "strict constructionists" sound as old-fashioned as the Bee Gees.

Last week, the high court handed down five more unanimous opinions. The week before, it served up a 5 to 4 split decision in which the dissenters included the usually conservative Chief Justice John G. Roberts Jr., his fellow Bush appointee Samuel A. Alito Jr., the moderate Kennedy and the liberal Stephen G. Breyer. We've passed the point of crying "strange bedfellows" at the Supreme Court. As of this month, conservative and liberal justices are routinely sharing a toothbrush.

So what has happened? Have the liberals caved, are the conservatives becoming more restrained, or is something else afoot? Most court watchers have been astonished to witness the liberal lion, John Paul Stevens, voting with the conservative bloc in cases upholding Kentucky's lethal-injection process, Indiana's rigid voter-identification law and Texas's fast-and-loose treatment of a Mexican on death row. (One commentator joked that 2007 might have been the year in which Stevens remembered that "he is a Republican.") Linda Greenhouse, who covers the court for the New York Times, speculated that the court's liberals may be joining with the conservatives to dilute the force of right-leaning decisions, extracting "modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions."

Perhaps all the newfound bipartisanship is explained by the fact that it's an election year, putting the justices on their best behavior. And of course, there are still a couple of weeks left in the term, which might not turn out to be so harmonious after all; the potentially explosive cases still pending include the decades-in-the-making D.C. gun rights case and a fight over expanding the death penalty to rapists. But here's one more hypothesis to explain the implosion of judicial ideology at the high court this year: It may simply have to do with the strange physics of time.

Last year, dissenting in the school affirmative-action case, the liberal Breyer lashed out at the slash-and-burn tendencies of the new conservative majority: "It is not often that so few have so quickly changed so much." Breyer was chiding the conservatives for their push to eviscerate decades' worth of abortion, affirmative-action and church-state doctrine in a week-long binge at the end of June. But even before Breyer's outburst, a key rift had been carved into the court's right wing: Alito and Roberts were declining to go as far as Justices Antonin Scalia and Clarence Thomas wanted to in several big cases that logically demanded that established precedents be overturned. In a church-state case last term, Alito wrote cryptically that he would not overrule a key precedent but "leave [it] as we found it." That language seems to have enraged Scalia, who dressed down Alito and Roberts for clinging to the empty shells of old cases. In yet another case, Scalia accused the two young conservative justices of "faux judicial restraint." The seeds of a split between two generations of conservatives had been sown: The younger justices opted for the tortoise, while their impatient elders chose the hare. Scalia and Thomas call to mind the famous quip about Gladstone being an old man in a hurry.

The urgency that Thomas and Scalia feel about "fixing" constitutional doctrine in big, sweeping ways may simply be caused by their lengthy tenures on the bench. Scalia and Thomas have served for 22 and 17 years respectively. Roberts and Alito have each served just over two. The young Turks are not sitting on decades of accumulated frustration and outrage. (Scalia barely bothers to hide his scorn for his lily-livered colleagues these days; he sneered in his dissent that last Thursday's Guantanamo ruling "will almost certainly cause more Americans to get killed.") But Roberts and Alito can afford to move slowly, with an eye toward how things look to observers already sourly suspicious -- especially after the travesty of Bush v. Gore-- that the court has become crassly political. And with the court hearing fewer cases every year -- it heard just 70 this year, its shortest docket in modern history -- the decision to slow the pace of change is probably a savvy one.

At the liberal end of the spectrum, Breyer and Stevens appear increasingly inclined to work with the court's conservatives to sidestep the trap of a 5 to 4 stalemate. Again, that may have more to do with age than you'd think. At 88, Stevens may well be the justice closest to retirement, and he may not to want to end his brilliant career with a series of brokenhearted dissents. At 69, Breyer may feel -- much like Alito and Roberts -- that he can afford to be a bit patient. He may also be learning the lesson that Sandra Day O'Connor taught in recent years: You can catch more votes with honey than with vinegar.

But the notion that time heals all wounds may mask what really lies beneath the new compromises at the high court. Consider how these new majorities of six, seven or eight justices are actually forged. Time and again, the justices have converged around the narrowest possible reading of a case -- in effect using the decision as a placeholder to say, "We'll decide the present case on very narrow facts, but we reserve the right to revisit the underlying issues in years to come."

This approach certainly represents judicial minimalism, or humility, and it was the young chief justice's confirmation promise to the American people. But it also does very little to guide future litigants. It's a deflection -- a constitutional push of the pause button that allows legislatures and the electorate to catch up. This new conciliation is a way for the younger justices to defer ideological disagreements and for the aging justices to pass the baton to their more energetic successors. And it may simply reflect an understanding on the part of various justices that some of them have big dreams but very little time remaining, while others have big dreams and all the time in the world.

dahlialith@hotmail.com

Dahlia Lithwick is a senior editor at Slate.


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