Dahlia Lithwick is dismayed. Writing in Slate and Newsweek she laments that the Supreme Court is “completely misunderstood by the American public.” A majority of Americans approve of the Court’s performance in recent polls, she reports, and half of Americans think the Court is neither too liberal nor too conservative. So clearly the public does not understand the Court.
If the public were only more aware of what the Court was really up to — dismantling “the Warren revolution with a tablespoon instead of a wrecking ball” — their opinion would shift. Indeed, if only the public could recognize the “heart of darkness that lurks inside the Roberts Court” Discussing the Court’s most recent term, she writes:
On balance, the term continued a clear trend in which big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death-row inmates get the needle, and criminal defendants are shown the door. So how to explain these new poll numbers showing that 49 percent of Republicans believe the Roberts Court is too liberal and 59 percent of Democrats believe the court is “about right”?
Perhaps the real problem is that the public has a better understanding of the Roberts Court than Lithwick is willing to acknowledge. For starters, the pattern of Court’s rulings bears little resemblance to the caricature quoted above. Is this a Court in which “big business always prevails” and “environmentalists are always buried”? Not really. In environmental cases, for instance, business wins about half of the cases. As I suggested in this paper, the trend is realy more “pro-government” than “pro-business” or “anti-environment.” Indeed, it’s hard to take seriously Lithwick’s claim when the Roberts Court is responsible for decisions like Massachusetts v. EPA. And what about big business? The record here is quite similar — as this study shows, the Court is more likely to side with the federal government than the business community. And, again, Lithwick seems to conveniently ignore the existence of important cases that challenge her thesis, such as three big preemption cases business lost this past term, including Wyeth v. Levine.
Okay, but is this a court in which “death-row inmates get the needle, and criminal defendants are shown the door.” Kennedy v. Louisiana anyone? (That’s where the Court held unconstitutional the death penalty for child rape.) Prosecutors would hardly characterize the Roberts Court’s Confrontation Clause jurisprudence as anti-defendant, last term’s Melendez-Diaz v. Massachusetts in particular. And what about workers? Even Erwin Chemerinsky acknowledges the Roberts Court’s record has been mixed here as well.
So perhaps the public likes the Roberts Court because, well, they actually like the Roberts Court. That is, they like a Court that issues narrow rulings, avoids sweeping world-changing decisions, and generally lists to the Right (but see Massachusetts, Kennedy, Boumediene). In the grand scheme of things, it’s hard to argue the Roberts Court, thus far, is any more conservative than the early Rehnquist Court.
So perhaps the public likes a “conservative minimalist” court. Or, perhaps, the public actually accepts Lithwick’s caricature — after all, it’s a charge we hear quite often — and would like a Court even more conservative than the one we have. I find that possibility at least as likely as Lithwick’s analysis.
One thing Lithwick definitely gets correct is that this term could be quite revealing. As I noted in this column, the Court will have ample opportunity to make broad sweeping rulings. Faced with important cases on the First Amendment, Commerce Clause, standing and separation of powers, the Court could show itself to be far more “conservative” (or perhaps more “liberal”) than it has revealed itself to be thus far. We’ll have to see. In the meantime, if we’re going to lament public opinion about the Court, we should first make sure we’re accurately representing the Court’s jurisprudence.