Barry Friedman: Why the Supreme Court is irrelevant.
[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.]
The most-watched case of the Supreme Court's last term, which ended in June, invited the justices to hold unconstitutional a key provision of the Voting Rights Act. The law required certain jurisdictions--largely in the Old South--to "pre-clear" any changes in their electoral systems with the Department of Justice. It was intended to prevent states with poor civil rights histories from changing their voting systems in ways that would keep blacks from voting. From the questions asked by the justices at the oral argument, the betting among the cognoscenti was that the Court's five-person conservative majority would strike down the law on the notion that things had changed and federal supervision was no longer necessary.
Instead, in a surprise 8-1 opinion authored by Chief Justice John Roberts, the Court decided that it didn't have to address the constitutional question at all. The Court said the district that brought the suit could simply go to federal court and get permission to "bail out" from the pre-clearance provision. No one but the justices thought this argument held water: The bailout provision they cited applied only to counties and parishes, neither of which the district was. The Court's conservatives had ducked the trouble that invalidating the law would have brought them.
Explaining the departure from the plain language of the law, the chief justice acknowledged, "this is an unusual case." But, in a broader sense, perhaps not. At least since its 1954 decision in Brown v. Board of Education, desegregating the nation's schools, the Court has weighed in regularly with dramatic pronouncements on some of the most challenging issues the country faces. As late as 2003, the Court handed down mega-decisions on controversial issues such as gay rights and affirmative action. However, major decisions like those are becoming few and far between. The firecracker-turned-fizzle of the voting rights case is an increasingly typical outcome from a Supreme Court that appears to be receding from its central role in American politics.
As the justices prepare to take their seats for the start of the new term on the first Monday of October, it's worth examining why the big news at the end of the last term was what the Court didn't do. At the start of the term, Court-watchers were decrying the lack of any big cases; by the end, the story was how the justices ducked even in the ones they had. And, despite some October promise, don't expect a blockbuster term this year either. The situation is structural and unlikely to change anytime soon.
Though the big 2003 term was toward the end of William Rehnquist's tenure as chief justice, the Roberts Court has hardly lain dormant since. That all changed this year. As the last term got under way, Adam Liptak, who covers the Court at The New York Times, called the docket a "buffet without entrees." And what's hot on the menu right now? Arbitration cases. The Court had three last term, and it has more to come this term. It's particularly revealing that in two of the three arbitration cases decided last term, liberals and conservatives joined hands on both sides of the decision: That's how you know something isn't a hot-button.
Since its inception, the Roberts Court has looked to avoid trouble. In the 2006 term, the Court's center actually stopped short of overruling past decisions in at least four big cases, despite heckling from Justices Antonin Scalia and Clarence Thomas on the far right. This approach has prompted some to label Roberts a judicial "minimalist." In the voting rights case itself, the chief justice delivered a stern lecture to Congress about how the provisions of the law "raise serious constitutional questions"--but then he walked away from the brink using that most hoary of judicial cop-outs, the "avoidance canon": "[I]t is a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of a case.”...
Read entire article at The New Republic
The most-watched case of the Supreme Court's last term, which ended in June, invited the justices to hold unconstitutional a key provision of the Voting Rights Act. The law required certain jurisdictions--largely in the Old South--to "pre-clear" any changes in their electoral systems with the Department of Justice. It was intended to prevent states with poor civil rights histories from changing their voting systems in ways that would keep blacks from voting. From the questions asked by the justices at the oral argument, the betting among the cognoscenti was that the Court's five-person conservative majority would strike down the law on the notion that things had changed and federal supervision was no longer necessary.
Instead, in a surprise 8-1 opinion authored by Chief Justice John Roberts, the Court decided that it didn't have to address the constitutional question at all. The Court said the district that brought the suit could simply go to federal court and get permission to "bail out" from the pre-clearance provision. No one but the justices thought this argument held water: The bailout provision they cited applied only to counties and parishes, neither of which the district was. The Court's conservatives had ducked the trouble that invalidating the law would have brought them.
Explaining the departure from the plain language of the law, the chief justice acknowledged, "this is an unusual case." But, in a broader sense, perhaps not. At least since its 1954 decision in Brown v. Board of Education, desegregating the nation's schools, the Court has weighed in regularly with dramatic pronouncements on some of the most challenging issues the country faces. As late as 2003, the Court handed down mega-decisions on controversial issues such as gay rights and affirmative action. However, major decisions like those are becoming few and far between. The firecracker-turned-fizzle of the voting rights case is an increasingly typical outcome from a Supreme Court that appears to be receding from its central role in American politics.
As the justices prepare to take their seats for the start of the new term on the first Monday of October, it's worth examining why the big news at the end of the last term was what the Court didn't do. At the start of the term, Court-watchers were decrying the lack of any big cases; by the end, the story was how the justices ducked even in the ones they had. And, despite some October promise, don't expect a blockbuster term this year either. The situation is structural and unlikely to change anytime soon.
Though the big 2003 term was toward the end of William Rehnquist's tenure as chief justice, the Roberts Court has hardly lain dormant since. That all changed this year. As the last term got under way, Adam Liptak, who covers the Court at The New York Times, called the docket a "buffet without entrees." And what's hot on the menu right now? Arbitration cases. The Court had three last term, and it has more to come this term. It's particularly revealing that in two of the three arbitration cases decided last term, liberals and conservatives joined hands on both sides of the decision: That's how you know something isn't a hot-button.
Since its inception, the Roberts Court has looked to avoid trouble. In the 2006 term, the Court's center actually stopped short of overruling past decisions in at least four big cases, despite heckling from Justices Antonin Scalia and Clarence Thomas on the far right. This approach has prompted some to label Roberts a judicial "minimalist." In the voting rights case itself, the chief justice delivered a stern lecture to Congress about how the provisions of the law "raise serious constitutional questions"--but then he walked away from the brink using that most hoary of judicial cop-outs, the "avoidance canon": "[I]t is a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of a case.”...