The Evil Magick of Chief Justice John Roberts


Writing at Slate, legal commentator Dahlia Lithwick and New York University law professor Barry Friedman argue that "under the stewardship of its boyish chief justice, John Roberts, the [Supreme Court] has taken the law for a sharp turn to the ideological right, while at the same time masterfully concealing it." Their article is titled "Watch as We Make This Law Disappear," and Lithwick and Friedman milk the image of Chief Justice Roberts as a master illusionist for all it's worth (Spoiler Alert: It's not worth much). Here's a representative passage:

How does the chief justice work to maintain the illusion that political ideology is not present on the Supreme Court while at the same time taking sharp steps to the right? He uses the illusionist's most famous trick of all: sawing the lady in half right before the audience's eyes. The Roberts court does some of its boldest work in cases where the ideological left splits internally, allowing the right to say that the issue is not ideological at all. . . .

This trick works just as well whether the conservative justices are splitting apart left-wing interest groups or their own colleagues on the left side of the court. In another of the decisions whittling Miranda away, Florida v. Powell, Roberts shrewdly gave the nod to liberal justice Ruth Bader Ginsburg to write the court's decision, which cut back on what rights the suspect must be read. In this term's Holder v. Humanitarian Law Project, the court split 6-3 by nabbing the only veteran on the left, Stevens, for a ruling upholding the statute banning "personnel" and "training" support for organizations designated as foreign terrorist organizations, even if all the support really was humanitarian.

It's a cute bit of writing, but is it accurate? Is Roberts practicing the dark arts before our very eyes? No, he's not. As the Harlan Institute's Josh Blackman points out:

When the Chief is in the majority, he assigns opinions. He can't assign all opinions to the conservative Justices. In fact, every year the Justices write about an equal number of opinions. Once in a while, he will need to assign an opinion to Justice Ginsburg or Justice Stevens. Florida v. Powell was 7-2 for most of the opinion. Hardly sawing the lady in half. And Roberts "nabbed" Stevens? JPS was unpredictable and independent. I do not think anyone, not even the Chief could nab JPS.

Lithwick and Friedman also claim that Roberts used the sawed lady trick in the Court's recent Second Amendment cases. As they put it, "A core of left-wing intellectuals joined hands with the right in supporting the gun-rights decisions in Heller and McDonald. They thus contributed to the sense that these decisions were acceptable to liberals." It's worth noting that this "core of left-wing intellectuals" who believe that the Second Amendment protects an individual right includes some of the country's foremost liberal legal scholars, including Lawrence Tribe, Akhil Reed Amar, and Michael Kent Curtis. The idea of these three serving as props for a conservative "illusion" is laughable.

And what about all those big liberal victories the Court has handed down since Roberts was sworn in? Poof! Lithwick and Friedman made them disappear from their article.