Is the Supreme Court Irrelevant?

October 3rd, 2009

At the conference, many of the panelists are talking about Professor Barry Friedman’s new, somewhat controversial argument, that the Supreme Court is irrelevant.

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.”

Of course, predicting the Court’s demise is chancy business–there’s always a potential big moment just around the corner. Still, don’t expect much in the way of blockbusters from the Roberts Court anytime soon. Stuck between political forces on the left and conservative disarray on the right, the Court will most likely continue to creep rightward with no bold agenda.

There has been a lot of talk about the shrinking docket of the Supreme Court, but Friedman seems to be going out on a limb to say that it is not only taking fewer cases, but taking less important cases. I would point to Heller, and the recent cert grant in McDonald v. Chicago as pretty important blockbuster cases. A lot of the scholars here seem antagonistic to Friedman’s views. So we’ll see how this idea pans out.