Just why does the Court seem to be avoiding bold moves? To begin with, despite their reputation, the justices of the Supreme Court do not sit above politics. Time and again throughout history, when the Court has run afoul of popular politics and the political branches, the justices have paid a price. One need only recall Franklin Roosevelt's 1937 move to pack the Court when it balked repeatedly at his New Deal measures. That was a long time ago, but the successors of those justices have not forgotten the bold public challenge to their authority. When the Rehnquist Court launched its "federalism revolution," Justice Souter sought to warn the majority away, alluding to 1937 when he said, "We know what happened." Controversial from the start, that revolution came to an abrupt halt. Then there was Planned Parenthood v. Casey, the decision that didn't overrule Roe v. Wade. Why not? It was hard to follow the plurality's convoluted explanation, but looming large was anxiety about the Court's public "legitimacy," as the opinion noted, if the justices were to overturn Roe with no reason other than changed membership on the bench.
Consider, then, the situation facing the conservative justices in the voting rights case. The 1965 law had just been reauthorized in 2006, passing the Senate 98-0 and the House with an overwhelming majority. In the interim, the country had elected its first African American president and put Congress in heavily Democratic hands. Had the justices overturned the challenged provision, they could have expected enough criticism that the controversies over, say, flag-burning or school prayer would have looked like a picnic by comparison. It is no accident that the avoidance canon gets pulled out in the salient case. By contrast, this term, the conservative justices eagerly overruled a prior decision protecting criminal suspects represented by counsel from police questioning. No modesty or gradualism here; in fact, the government hadn't even asked for that result. The difference? No one was watching the case.
A looming restraint on the current justices is the risk that, should they read a statute in a conservative way, the Democratic Congress will simply rewrite the law to set matters straight. Is it a coincidence that the first bill Barack Obama signed into law was the Lilly Ledbetter Fair Pay Act of 2009? Lilly Ledbetter was the lead player in Ledbetter v. Goodyear Tire and Rubber Co., a 2007 Roberts Court decision that adopted a stingy interpretation of when cases could be brought under the equal-pay provisions of federal law. Congress tried immediately to overturn the decision; when Republicans blocked the effort, it became an issue in the 2008 campaign. Adoption of the Ledbetter law reminds the conservative justices that they are being watched. (At least twice this past term, Justice Ruth Bader Ginsburg overtly appealed to Congress to undo what her conservative colleagues were doing; dissenting in another voting rights case, she pointedly noted, "Today's decision returns the ball to Congress' court.")
A final risk for the conservative Court majority is that the conservative coalition itself seems so weak. This weakness has led to a number of cases in which wayward conservatives voted in ways that gave the Court's liberals the upper hand, as happened in the 2008 decision in Boumediene v. Bush, when Justice Anthony Kennedy joined the liberals to overturn the Bush administration's plans for trying Guantánamo detainees before military commissions. Kennedy clearly holds the power on the Court when it comes to deciding cases; 23 of the Court's 79 cases this past term were resolved by a 5-4 vote, and, in 18 of them, Kennedy was in the majority. But he is hardly alone in breaking ranks. This past term, for reasons we can only speculate, both Justices Scalia and Thomas helped deliver some surprising liberal victories, particularly in cases involving the question of whether congressional statues preempt state lawmaking.
Even when the conservatives hang together on the outcome, they often insist on going their own ways in writing opinions. The importance of fractured majority opinions often gets lost, but it is key: What the justices say in their opinions is what sets law for the future. And, when it comes to opinion-writing, it takes five united votes to really win.
This past term's screamer was Federal Communications Commission v. Fox Television Stations, not the most momentous of cases but infinitely revealing of the problem. Starting in 1978, and for years after, the FCC would only punish repeated vulgarity, or a single use of "indecent" language, if it was used in a literal (i.e. sexual or excretory) sense. But, when Bono said, during the 2003 Golden Globes, "This is really, really fucking brilliant," the FCC decided that a single, non-literal use of such words was verboten. The questions in Fox were whether the FCC had adequately explained the reasons for its switch in policy, and, if so, whether the new policy was consistent with the First Amendment?
In what looked to be a 5-4 conservative win, Chief Justice Roberts upheld the FCC's decision. He found the FCC's explanation sufficient and "decline[d] to address the constitutional questions at this time" because the lower courts had not yet spoken to them. (Sound like a familiar tactic?) But watch as even that weak opinion fizzles away: First, though Justice Thomas joined the majority, he wrote separately to express his view that the 1978 decision was probably wrong, in that it gave the FCC too much power in the first place, signaling the possibility that there may well be five votes to overturn the FCC policy on constitutional grounds. Then, Justice Kennedy (who also joined the majority), wrote his own opinion to "agree with the dissenting opinion of Justice Breyer that the agency must explain why ‘it now reject[s] the considerations that led it to adopt the initial policy.' " Whoops. Apparently Kennedy thought the FCC's explanation in this case was okay, but, on the broader administrative law issues, the dissenters now prevail, 5-4. Enough wins like this and the conservatives will be in a good position to declare defeat.
Of course, predicting the Court's demise is chancy business--there's always a potential big moment just around the corner. Still, don't expect much in the way of blockbusters from the Roberts Court anytime soon. Stuck between political forces on the left and conservative disarray on the right, the Court will most likely continue to creep rightward with no bold agenda.
Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law. His book, the will of the people: how public opinion has influenced the supreme court and shaped the meaning of the constitution, is being published this month.
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COMMENTS (1)
But what is your thesis Prof. Friedman? Is it that the conservative bloc of the Court is philosophically and ideologically predisposed to overturn precedent based on its mere disagreement with the precedent, and to aggressively pursue a rightward agenda, but will do so only in cases in which an aggressive decision will not create a loud public backlash? Is it further your thesis that the Court should tack aggressively in one ideological direction or the other, and that deference to precedent and to legislative judgment will render the Court irrelevant, if not dead?
First, I think it is true that Roberts, Scalia, Alito and Thomas are inclined to disregard stare decisis and legislative judg ... view full comment
But what is your thesis Prof. Friedman? Is it that the conservative bloc of the Court is philosophically and ideologically predisposed to overturn precedent based on its mere disagreement with the precedent, and to aggressively pursue a rightward agenda, but will do so only in cases in which an aggressive decision will not create a loud public backlash? Is it further your thesis that the Court should tack aggressively in one ideological direction or the other, and that deference to precedent and to legislative judgment will render the Court irrelevant, if not dead?
First, I think it is true that Roberts, Scalia, Alito and Thomas are inclined to disregard stare decisis and legislative judgment where such disregard would advance their own political or social ideology. But, where they have refrained from invalidating legislation that they apparently believe is unconstitutional, it is not at all clear to me that they have been deterred by the prospect of a public backlash. It seems more likely to me that the gang of 4 could not garner a 5th vote from the more mature and less ideological Justice Kennedy. Let's take the voting rights case as an example. It is perfectly clear from the opinions of Roberts and Thomas that they are completely willing to substitute their judgment for the judgment of the legislature, not merely concerning legal questions, but concerning the purely factual question of whether Section 5 of the Voting Rights Act is still necessary. Roberts expressly warned Congress that the Court (if the gang of four has anything to say about it) is likely to invalidate Section 5 if it is presented with a case in which it must squarely address the issue. Of course, we don't know, but it is fairly evident that Roberts could not garner a majority to hold Section 5 unconstitutional. Otherwise, he would have had no compunction about doing so. And let's keep in mind that Section 5 does not even implicate any express constitutional provision, in the way that school segregation directly implicated the Equal Protection Clause of the 14th Amendment. In fact, the 15th Amendment expressly GRANTS Congress the power to enforce the right to vote with appropriate legislation. Nowhere does it grant the Court the power to determine what is "appropriate." At minimum, the Court should be highly deferential to Congress' judgment in enacting legislation to enforce the 15th Amendment. But Roberts and Thomas have demonstrated that they are quite prepared to usurp to power the Constitution grants to Congress, if only they can garner a majority to do it.
On the other hand, the gang of four has been happy to make new law and undermine a legislative scheme where it could get Kennedy's vote. The prime example from last term is the New Haven firefighter case. In that case, the Court announced a new rule to determine whether an employer's attempt to comply with Title VII's disparate-impact provision violates Title VII's disparate-treatment provision, and, in clear contravention of Congress' intent, placed employers in the untenable position of being in possible violation of Title VII no matter how they respond to an apparently discriminatory employment practice. So I question the proposition that the gang of 4 has been restrained by fear of public disapprobrium, rather than by the inability to consistently pull Kennedy to their view.
Second, if the gang of four is hesitant to make rulings for fear that Congress may reverse the rulings with legislation, then they are guilty of malfeasance. The Court should have no interest in the outcome of statutory interpretation. Its only interest should be in discerning congressional intent from the statutory language and from other sources if necessary. It should be of no consequence to the Court if it interprets a statute one way, and Congress then amends the statute to reflect its true intent. With regard to the Ledbetter case, you imply that it is the gang of 4's agenda to restrict the application of the equal-pay provisions of federal law, and that it would be (or was) chagrined by the legislation to amend the equal-pay provisions to implement Congress' intent that the equal-pay provisions not be so constricted. It would be wholly improper for the Court to be motivated by such considerations.
Finally, if the gang of 4 is in fact being deterred, for whatever reason, from showing a lack of deference to precedent and to legislative judgment, then that is a good thing. Your position appears to be that, in order for the Court to be relevant, it must exceed its proper role under the Constitution.