Moving Right But Not Too Far For The Public: It Must Be “Magic”

First, consider some headlines about the Supreme Court from major news sources:

The New York Times, July 2010: “Court Under Roberts Is Most Conservative in Decades”

Los Angeles Times, January 2010: “A Bold Conservative Step by Supreme Court”

USA Today, June 2009: “High Court Curves In Conservative Direction”

Washington Post, June 2007: “Narrow Victories Move Roberts Court to Right”

San Francisco Chronicle, June 2007: “Supreme Court’s Unsettling Turn [To the Right]”

National Public Radio, June 2006: “Supreme Court More Conservative, Fragmented”

Next, consider the fact that according to some public opinion polls, the Supreme Court is roughly at the center of public opinion, and perhaps a bit to the left of center — with more people saying the Supreme Court is too liberal than saying it is too conservative.

How to reconcile the press coverage with the poll results? To my mind, the most likely explanation is that there is a difference between the direction of the law on the left-right spectrum and its present location on that spectrum. Let’s oversimplify and imagine 0 as the most liberal state of the law and 10 as the most conservative. Let’s further say the median voter would prefer a 5 on that scale. If the Supreme Court’s decisions have the effect of moving the law from (say) a 4 to a 4.5, the Court will both be moving the law to the right and also be seen by the median voter as roughly dead center or maybe a bit to the left. (Of course, that’s not to say that these numbers mean anything: I just use them as examples to demonstrate the difference between direction of change and present state.)

Writing in Slate, however, Barry Friedman and Dahlia Lithwick have a different explanation. They argue that Chief Justice Roberts is a “brilliant magician” who has managed to hide the Court’s conservatism from the public:

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.

To my mind, Friedman & Lithwick’s explanation is extremely unlikely. The Supreme Court is normally described as conservative in the press, Indeed, I think the press regularly overstates the Court’s conservatism. And pretty much every ideological-divided decision gets heavy press coverage that focuses heavily on the right vs. left dynamic. Given that, I don’t see the alleged “secret.” It may be that the public is not drawing the lesson from the press coverage that Friedman and Lithwick want them to draw. But I would think that’s because they just disagree, not because John Roberts is some sort of wizard with magical powers who can hide the Court’s decisions from the public that would otherwise see them on the front page of the New York Times.

UPDATE: Matthew Bodie has some similar thoughts at Prawfs.