If the Roberts Court isn't scared of public outcry, why does it do so much of its dirty work so secretively?

"The incredible Chief Justice John Roberts": Slate's Barry Friedman and Dahlia Lithwick take aim at a master illusionist.

by Ken

Last night I directed readers to a must-read Slate piece by Barry Friedman and Dahlia Lithwick, "Watch as We Make This Law Disappear," whose subtitle perhaps makes clearer its thrust: "How the Roberts Court disguises its conservatism."

How to explain the justices shoving the law rightward, while everyone thinks it is dead center or too far left? The answer is that [Chief Justice John 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.

The authors identify five categories of tricks practiced by the "magician" Roberts:

1. Stacking the Deck -- "by picking cases with facts so extreme that only one outcome seems possible. Then it uses those same reasonable-seeming decisions to push the law in conservative directions."

The authors underline the obvious but often overlooked fact that these decisions become the law of the land, governing cases that are likely to be nowhere near as provocative or clear-cut as the ones litigated, and since the media and public focus almot exclusively on the circuslike cases, hardly anybody knows how the legal ground has shifted.

And the Supreme Court, remember, has total discretion over which cases it accepts out of the huge number presented to it. The extremist bloc, the authors note, has become increasingly adept at shopping among those cases for those it can use to further its legal agenda -- and hardly anybody notices. The prime example they cite is the Court's steady but relentless erosion of the landmark Miranda ruling.

The conservative justices hate Miranda v. Arizona, a case familiar to any American who has ever watched a cop show on TV ("You have the right to remain silent," etc.). The justices' problem is they can't quite overrule the decision. Why not? Because polls show about 80 percent of the country approves of the rule. Even Roberts' predecessor—the very conservative William Rehnquist, a confirmed lifelong Miranda loather—choked in 2003 when he had the chance to get rid of it. Miranda, he wrote, "has become embedded in routine police practice to the point where the warnings have become part of our national culture."

What to do? They have found cases seemingly so outrageous that they require any sensible judge to stretch the rules, and after they've done it often enough, Miranda comes to mean practically nothing. Mission accomplished. Same deal with Roe v. Wade. Women's reproductive rights have been effectively wiped off the books. And as my legal-eagle colleagues are pointing out, the next big area of attack is access to the courts, which Roberts & Co. are working like the dickens to cut off to all but the wealthy whose interests they serve so devotedly.

Trick 2: Misdirection. The extremist justices, say the authors, know full well which cases will draw public scrutiny. They go through the motions of attaching great weight to them, but their real work is done in barely noticed, often highly technical cases.

So while the world thought it saw the extremist bloc stepping back from its presumed intention to dismantle the Voting Rights Act of 1965 in the 2009 NAMUNDO case, it in fact served notice on one and all (including Congress) "that the Voting Rights Act stands on shaky ground" while pushing back individual rights on a host of fronts in cases that attracted hardly any notice. Continuing the "magician" metaphor, the authors warn us: "Like the illusionist's hands, it's the cases you don't see that you should be watching."

Trick 3: Restoration. This is the trick of the Court making drastic changes in existing precedent while pretending to leave the precedent untouched -- a Roberts specialty.

The Roberts Court strives hard to make the new seem old. Why? Because if everything is just as it was before, it can't be accused of changing the law. In a sense, this is the way of the judge: Prior precedents are offered up to justify every decision. Nothing is ever entirely novel. The difference today is that the justices aren't really following the old rules; they just create the illusion that they are.

The authors cite the chief justice's legerdemain in overturning precedent that allowed affirmative action by claiming, in Parents Involved in Community Schools v. Seattle School District No. 1, that he was actually restoring the Court's own mandate -- incredibly enough, using Brown v. Board of Education to block public efforts to reverse segregation.

Trick 4: The Escape. And of course, if you're good -- and again, in matters of deceptive appearance, the chief justice isn't just good, he's a master -- you can go ahead and undo those nasty old precedents and just pretend you didn't.

Perhaps the best example of The Escape came in a 2007 campaign-finance case. Americans have heard a lot about campaign-finance law this past year, as a result of the court's dramatic decision last January in Citizens United. That decision overruled prior precedents allowing Congress to restrict corporate money in elections and earned a national shout of disapproval. But what you probably don't know is that the court had already accomplished virtually the same feat, by the same 5-4 margin, in the 2007 case Federal Election Commission v. Wisconsin Right to Life. Unlike the Citizens United case this year, however, in which the justices announced the change out loud, in Wisconsin Roberts claimed to be following precedent when he was shredding it.

The authors point out that "this trick has been used so frequently that conservatives and liberals alike came up with a name for it: 'stealth overruling.'" And they point out that Justice Antonin Scalia has actually chided the escapers for "faux judicial restraint."

Trick 5: Sawing the Lady in Half. In line with the magician's trick of sawing the lady in half, the authors point out with reference to a number of cases including the big-deal gun-rights pushbacks, where the extremist justices were able to pick up support from hard-core individual-rights champions, or a Miranda-whittling case like Florida v. Powell, which garnered support from Justice Ruth Bader Ginsburg (whom Roberts of course had write the majority opinion), Roberts & Co. have learned to foster the illusion that the lady was never sawed in half at all -- just look at her! But of course that isn't really the lady who was there originally.

The chief justice isn't really an illusionist, though, and the Supreme Court is not theater. It's real life. Today, because of the Roberts Court's decisions, state and local governments face greater obstacles to integrating their schools and getting guns off their streets. Second-term abortions are harder to get and often more expensive. Injured plaintiffs are tossed out of court without any sort of hearing. Criminal defendants? Forget about 'em (the court has).

Legally, of course, the Supreme Court justices can do any damned thing they want, and short of impeachment, nothing can stop them. And the authors point out:

The justices are entitled—indeed, obliged—to decide cases as they see fit. In that sense they really are umpires, and judicial independence is an important part of the American system.

The problem, they insist, is transparency. Again, the chief justice seems acutely aware that there's a court of public opinion he can't offend too frontally. He also understands, though, that the court of public opinion is a lazy and inattentive one.

In fairness, it's not just the illusionist who is to blame. Magic works because the audience so desperately wants to be fooled. The American public seems to want to believe in the myth of a nonideological Supreme Court, all evidence to the contrary notwithstanding Then there's the media: Looking really closely at just five cases each year—the girl in the cocktail dress—is easier than seeking out the nuanced sleight of hand.

The Court has an obligation, the authors insist, and we have an obligation to hold them to it, to being open about what they're doing.

Tricks and illusions are fine, great even, as popular entertainment. But when it comes to "equal justice under law" -- the words etched on the front of the Supreme Court -- "now you see it" is vastly preferable to "now you don't."

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