In her "Supreme Court Memo," "In Latest Term, Majority Grows To More Than 5 of the Justices," reporter Linda Greenhouse pondered where all the narrow 5-4 Supreme Court decisions have gone.Greenhouse stillinsists liberals have little power on the court, which is actually a step forward from her previous denials (back in 2003, when the court had a slightly more centrist ideological makeup) that there were no genuine liberal voices on the court.
In her Friday Memo, Greenhouse speculated that the Court's surprisingly broadbut narrow rulings on three recent controversial cases means the "conservative court" has been spooked by a public and intellectual backlash.
All were major cases, all plausible candidates for 5-to-4 outcomes. All were government victories, hardly surprising coming from a conservative court. But even Justice John Paul Stevens, the leader of the court's beleaguered liberal bloc, voted with the majority in all three cases. The surprise was that the government side won each so handily.
It would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up. Something deeper seems to be at work. Each of those three cases might have received a harder-edged, more conclusively conservative treatment at the hands of the same five-member majority that controlled the last term.
Instead, the lethal injection and voter ID decisions hewed closely to the facts of each case. Kentucky's lethal injection protocol passed muster, but the court left open the possibility that another state's practice might not. The voter ID challenge reached the court on a nonexistent record, so perhaps a stronger case could be made at a later time. Justice Antonin Scalia's majority opinion in the child pornography case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer and win their full concurrence.
So perhaps there was a bit of movement on both sides - not simple liberal capitulation, but liberals using their limited leverage to exact some modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions.
With the conservative bloc so clearly in control, what leverage could the liberals possibly have? Recall the pledge that Chief Justice John G. Roberts Jr. made, both in his 2005 confirmation hearing and in the early months of his tenure, to seek consensus and to lead the court in speaking in a modest judicial voice. That was not how the last term looked, as the majority took aim at precedents and appeared to have in mind an agenda much more ambitious than simply calling balls and strikes.
Indeed, much of the commentary on the court's performance during the last term was harsh, and it came not only from liberals. Judge Richard A. Posner, the conservative icon who sits on the federal appeals court in Chicago, offers some pointed and unusually personal criticism of Chief Justice Roberts in his new book, "How Judges Think," published this year by Harvard University Press. The chief justice's self-description during his confirmation hearing as a simple baseball umpire might have been a "tactical error" for one who evidently "aspires to remake significant areas of constitutional law," Judge Posner writes, adding:
"The tension between what he said at his confirmation hearing and what he is doing as a justice is a blow to Roberts's reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings."
Such words from Richard Posner would cause any member of the court, let alone a relatively new and young chief justice who undoubtedly admires him, to swallow hard.
For one thing, Posner is too iconoclastic to be reduced to a "conservative icon."
Greenhouse also believes the conservative court panicked in the face of public reaction to its decision in an employment discrimination case (one the liberal media disliked immensely), though it's the Courts brief to follow the law, not to be a windsock for mass opinion.
Perhaps the conservative justices were taken aback by the public response to the Lilly Ledbetter case, a 5-to-4 decision in an employment discrimination case last term that placed a tight time limit on an employee's ability to file a pay discrimination claim. The decision led to Congressional hearings during which the court was denounced as out of touch with the reality of women's working lives. A bill to overturn the decision failed in the Senate, but came close.