Update: Thanks for the Installanche Instapundit!

Today we launched the October 2010 Season of FantasySCOTUS.net, the Internet’s Premier Supreme Court Fantasy League. It’s Free and Fun! Sign up today.

Barry Friedman and Dahlia Lithwick have a lengthy piece at Slate, discussing how the “Roberts Court disguises its conservatism.” This piece follows other pieces written by Adam Liptak and Linda Greenhouse, among others, that argue that the Roberts has shifted the Supreme Court hard to the right. This piece is quite enjoyable to read, comparing the work of Chief Justice Roberts to that of an illusionist, but I think a few of its points are off the mark.

The article focuses on 5 standard magician “tricks,” and explains how the Roberts Court employs them to pull the wool over all our eyes.

Trick 1: Stacking the Deck

The Roberts Court has proven itself adept, brilliant even, at stacking the deck that is its annual docket. It does so 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 Supreme Court grants cert based on the so-called “Rule of 4.” It takes the votes of any 4 Justices to hear a case. The 4 liberal Justices can vote to grant cert on any case they wish. Perhaps, for strategic reasons, the liberal justices would be hesitant to take a case they know they will lose, but I don’t think the “stacking the deck” analogy works here. Additionally, the Court has been criticized of late for taking too-few cases. Now, they are being criticized for taking too many cases so that they are stacking the deck?

Trick 2: Misdirection

If the Roberts Court has honed a single skill, it’s misdirection: While we are watching the term’s “big” cases, it works its magic on the ones we aren’t paying attention to, which often matter more. . . .

In an opinion widely described as the court being “statesmanlike” and “dodging a bullet,” the justices resolved the case, 8-1, on very narrow grounds that ensured that small jurisdictions such as the Texas utility district in question would have an easier time opting out of the preclearance requirement. At the same time, the opinion made a point of warning Congress that the Voting Rights Act stands on shaky ground.

. . .

Like the illusionist’s hands, it’s the cases you don’t see that you should be watching. While the court wasn’t striking down the Voting Rights Act, it was deciding Ashcroft v. Iqbal, a case you probably haven’t heard about (unless your name is Ashcroft. Or Iqbal).

I don’t quite get this point. The fact that NAMUDNO was 8-1 shows me that Roberts isn’t tilting the Court all the way to the right. In fact, Justice Thomas, the lone “conservative” on this case was willing to strike down the VRA. It would seem that such a “statesmanlike” resolution would have been the desired option in a case like Citizens United–resolving the case on narrow grounds, and giving Congress a chance to fix it.

The juxtaposition, or misdirection, with Iqbal also doesn’t make sense. Iqbal was the logical progression, in my mind at least, of the 2007 opinion in Bell Atlantic v. Twombley– an opinion written by Justice Souter! Now, Souter dissented in Iqbal, arguing that isn’t what he meant. But in reality, it wasn’t that much of a stretch. I don’t blame America for not getting worked up about an interpretation of Fed.R.Civ.Pro. 8. They didn’t care much after Twombley. Not surprising they didn’t care about Iqbal.

Trick 3: Restoration

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. . . .

For sheer chutzpah in restoration, the chief justice’s opinion in Parents Involved in Community Schools v. Seattle School District No. 1 probably deserves some kind of award. But in Parents Involved, Roberts had a problem: precedent. Just a year before he took the bench, in the University of Michigan affirmative-action cases, the court had determined that, in effect, it was OK to make admissions decisions on the basis of race in an effort to stop discrimination on the basis of race. So how could he insist, only a year later, that such measures were unconstitutional when applied to younger students?

Before I get to the discussion of Brown, I need to pause, because this wasn’t precisely the holding of Grutter. Grutter specifically considered whether diversity was a compelling interest in the higher education setting. As Justice O’Connor wrote:

Nor, since Bakke, have we directly addressed the use of race in the context of public higher education. Today, we hold that the Law School has a compelling interest in attaining a diverse student body.

The Seattle School District was not an institution of higher education. Grutter, contrary to the assertions of this article, did not control.

Now, onto Brown.

To justify his opinion in Parents Involved, Roberts claimed it was required by Brown v. Board of Education. Brown? That was the landmark 1954 case prohibiting segregation. As Justice John Paul Stevens said in response to the Roberts opinion, there was “cruel irony” to the court using a case about segregation to prohibit integration. Still, the chief justice stuck to his restorationist guns: “The position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: ‘[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of color or race.’ “

You might thinks this is an objectionable interpretation of Brown, but this really isn’t anything new. Scalia, as well as Thomas, have been writing for nearly two decades that the 14th amendment is “color-blind,” following Justice Harlan’s dissent in Plessy, and bans the differential treatment on the basis of color (See e.g., Adarand v. Pena). Friedman and Lithwick undercut the force of this article by noting that this is how judges judge.

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.

I agree with this. Nothing worthy of David Copperfield here. Further, as the article notes, Justice Kennedy did not join this portion of the opinion, so it would seem that the master tactician Roberts failed here. Wouldn’t Roberts, so “statesmanlike” have written a more narrow opinion to lure Kennedy, like he apparently did in NAMUDNO? Guess not.

Trick 4: The Escape

Roberts and Justice Samuel Alito found themselves in a similar bind. Having both pledged at their confirmation hearings that they would respect precedent, and had “no quarrel” with foundational cases and doctrine, they were locked into a legal universe that for them would quickly become airless.

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.

I don’t know if Roberts or Alito specifically said that they would not quarrel with existing First Amendment precedent. If I had to guess, he danced around such a question and made some umpire comment. But you know which Justice broke her vow to respect a very specific precedent one year after her confirmation? Justice Sotomayor.

As Dave Kopel noted, Justice Sotomayorpulled a switcheroo on the 2nd Amendment within 1 year.

To the SenateJudiciary Committee, Justice Sotomayor repeatedly averred that Heller is “settled law.” The Associated Press reported thatSen. Mark Udall, Colorado Democrat, “said Sotomayor told him during a private meeting that she considers the 2008 ruling that struck down a Washington, D.C., handgun ban as settled law that would guide her decisions in future cases.”

So by “settled,” she apparently meant “not settled; should be overturned immediately.”

I don’t recall Friedman or Lithwick criticizing Sotomayor for engaging in a “Great Escape” with her vote in McDonald. I may be wrong.

Trick 5: Sawing the Lady in Half

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.

Don’t be fooled by the fact that the lady in the box looks like she has been split down the middle. These are all still conservative results. When the trick is over, these results—just like the lady—are going to climb down off that stage and start working their way in the world.

I don’t get this trick. 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.

Minor gripe, but the article notes that Penn & Teller work at the MGM Grand. They in fact work at the Rio.