Friedman writes about relevance of Supreme Court in the New Republic

In the September 23 issue of the New Republic, Vice Dean Barry Friedman, Jacob D. Fuchsberg Professor of Law, whose book The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, is due out this month, discusses the Court’s growing tendency to eschew dramatic decisions in favor of narrower rulings.

“Since its inception, the Roberts Court has looked to avoid trouble,” Friedman argues in his article “Benched: Why the Supreme Court is Irrelevant.” Citing sweeping rulings involving gay rights and affirmative action as recently as 2003, Friedman points to the last term’s most anticipated case, Northwest Austin Municipal Utility District Number One v. Holder, which observers had predicted could lead to the overturning of a key Voting Rights Act provision. Instead, the justices crafted one of the most limited decisions possible, with Chief Justice John Roberts invoking the “avoidance canon,” the principle by which the Court refrains from deciding a constitutional question if a case can be otherwise dispatched.

Why such caution? Friedman believes that the justices, despite their lifetime appointments, are taking politics into consideration when they avoid writing landscape-altering opinions. “A looming restraint on the current justices,” Friedman says, “is the risk that, should they read a statute in a conservative way, the Democratic Congress will simply rewrite the law to set matters straight,” adding that, in the most recent term, Ruth Bader Ginsburg “overtly appealed to Congress to undo what her conservative colleagues were doing.” With the shift of national politics away from the right, Friedman explains, the more conservative justices have lost some clout.

Even ostensible right-wing victories are complicated in the case of fractured majority opinions, on which, he says, the Court’s conservatives often insist. In the recent First Amendment case Federal Communications Commission v. Fox Television Stations, an already close 5-4 decision was further weakened by dueling majority opinions from Roberts, Clarence Thomas, and Anthony Kennedy. “Enough wins like this,” said Friedman, “and the conservatives will be in a good position to declare defeat…. 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.”

Posted on September 11, 2009