The Breakfast Table

Our Judges With Attitude

Linda and I are sidling up to the possibility—inspired in part by an anonymous poster at Rick Hasen’s Election Law Blog—that the Roberts court was biting its tongue in the VRA case and Redding, and my lingering question is, if that’s true, why? Why now? Why these cases? Hasen’s anonymous poster writes that the VRA decision was the “product of a wide (perhaps unanimous) agreement this was a moment of high institutional risk, and perhaps moral sensitivity, and that the Court was allowing itself to verge very close to a self-inflicted wound.” Help me unpack that; what exactly would the wound be? That the court looks political? Er. That hasn’t stopped them before. Or does it have something to do with the special status of the Voting Rights Act (and perhaps the uniquely awful—but eminently tell-able—tale of Savana Redding’s humiliation). Why was the court ready to pull the trigger on the Seattle schools case but not willing to go there on the VRA? Why all of a sudden now with the statesmanship?

Part of the answer has to be the Sotomayor confirmation hearings, which begin in two short weeks. The chief justice knows better than anyone how powerful these hearings are when it comes to messaging about the court. And we know exactly what these hearings would have looked like had the Supreme Court just gutted the VRA, or allowed young girls to be strip-searched for ibuprofen. With these narrow 8-1 decisions, instead of a week of angry Democrats questioning Sotomayor about the heartless cyborgs of the Roberts court, we will again just go through the motions on stare decisis and whether Griswold is superprecedent, superduper precedent or venti-precedent.

I am just now reading an advance copy of professor Barry Friedman’s fantastic new book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution,due out in September. In it, Friedman argues that the American public has a lot more control over the courts than we think we do—that the justices don’t actually stray all that far from public opinion. That’s quite a notion: Despite the rumors of lofty out-of-touch-ness, the high court is in conversation with the public all the time. Do you agree with that thesis as a descriptive matter? As a normative matter? And if the court is really going to reign itself in over rabble like us, what sorts of things should it be reacting to?

I was trying and trying to write a limerick about Ricci, to launch us into the weekend, but nothing seems to rhyme with “disparate impact.”

Talk to you soon,