Curt Levey, Committee for Justice
The opening of a new Supreme Court term this week brought the predictable slew of articles about the Roberts Court’s supposed lurch to the right. As others have noted, the hyperbole typical of these articles suggests that they are probably aimed at influencing Justice Anthony Kennedy, the Court’s swing vote. Nonetheless, we did not expect to see a piece as over the top as this week’s Slate essay—penned by prominent Court observer Dahlia Lithwick and co-author Barry Friedman—accusing the Roberts Court of magician-like sleight of hand. The essay’s thesis:
“[The Roberts] 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?”
Put aside the far-fetched and conspiratorial nature of the allegation. Put aside how to square the Court’s masterful concealment of its right-wing aims with the slew of articles and “studies” accusing the Court of lurching to the right. And put aside the essay’s confusion of direction with location (the Court moving to the right tells you no more about where it is relative to the “dead center” than a train’s northward movement tells you whether it is north or south of Washington, DC).
What remains is the contention that only an illusion can explain why Americans currently view the Supreme Court as “a wee bit too liberal.” It’s a bizarre contention given that one need only look at issue-oriented public opinion polls to find an obvious explanation. Stuart Taylor, former New York Times Supreme Court reporter and National Journal columnist, did just that and concluded that
“[On] six of the most contentious subjects that come before the justices on a recurring basis: abortion; race; religion; the death penalty; gay rights; and presidential war powers. On every one of them, the Court’s precedents are to the left of, or very close to, the center.”
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