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A single death-penalty decision, Furman v. Georgia, in 1972 struck down more than 30 state laws and spared some 600 prisoners. This year the Roberts court will hear a case asking whether death is an excessive punishment for the rapist of a child. There is only one such prisoner on death row in the U.S.
Of course, symbols matter. Court cases dealing with Executive power over Guantánamo detainees will directly affect relatively few people, but such cases help strike the philosophical balance between security and human rights that is relevant to the entire nation and to America's place in the world. As Harvard professor Frederick Schauer pointed out in an influential recent law-review article, however, "most of the court's agenda lies some distance from the nation's." Compounding this is the fact that the court is tackling fewer cases than at any other time in the past half-century. Last term's output of just 68 decisions was the lowest since 1953. Court watchers and even the Justices themselves aren't sure why the docket is so small. Nor do the Justices have a plan for picking up the pace. The U.S. is the world's most litigious society, but our lawsuits aren't sexy enough to interest the Justices of the Roberts Court. We're not that into them, and they're not that into us.
The Dryest Court in the Land
John Roberts not only has an abiding philosophy, but he also has a temperament. He is a technocrat of appellate law and a groupie of Supreme Court culture. He clerked for the late Chief Justice William Rehnquist and became one of the most prominent members of the Supreme Court bar as head of appellate practice at the law firm Hogan & Hartson. Roberts argued 39 cases before the court--which meant studying the personalities of Justices to whom he would direct his arguments and identifying the questions that might pique their intellectual fancy.
This makes him a perfect representative of a highly technocratic and specialized court. The Roberts Court exemplifies a striking change in the anthropology of the high tribunal. For much of the institution's history, Justices arrived from diverse backgrounds. Some were distinguished lawyers in private practice, such as Louis Brandeis and Lewis Powell. Some were presidential advisers--like Roger Taney, James Byrnes and Abe Fortas. Dwight Eisenhower put Earl Warren in the job after the then Governor locked up California for Ike in 1952. There have been relatively obscure state-court judges like William Brennan and Sandra Day O'Connor, law professors like Felix Frankfurter and even a former President, William Howard Taft. On the court that decided Brown, only one Justice had come up from the federal courts.
Today's court includes a woman and an African American, but in other ways it is far less diverse than in the past. All the Justices were promoted from the federal courts of appeals. Most of them have backgrounds as law-school professors or as veterans of the intellectual realms of the Justice Department--the Solicitor General's office or the élite Office of Legal Counsel.
That these Justices so often find their attention captured by discrete cases that pirouette on a narrow point of law suits their shared temperament. They are like priests, schooled from an early age in the orthodoxies, mysteries and controversies of the constitutional faith. Many of them have been enfolded from an early age in the ideological apparatus of the right or the left. As young Justice Department lawyers in the early days of Ronald Reagan, Roberts and Justice Samuel Alito played on the same volleyball team, and both men were quickly marked for big things and nurtured for the bench. Justice Ruth Bader Ginsburg's cocoon was the American Civil Liberties Union. Stephen Breyer's inculcation came on Senator Edward Kennedy's Judiciary Committee staff.
An ordinary citizen visiting the court on an oral-argument day is likely to feel as though she has wandered into a Vatican conference room filled with adepts in Augustinian theology debating arcane questions in hurried Latin. The Justices are scarlet-capped cardinals; the law clerks are the brilliant new seminary graduates, their razor minds undulled by actual experience; the lawyers at the dais are the theologians commissioned to assist in plumbing the sacred texts.
The Gloves Come Off
Opposite Roberts' desk in his paneled chambers is a door that leads to the Supreme Court conference room, where in order of seniority the Justices discuss cases. It is a small space for such robust egos and large minds, but by all accounts, the exchanges are unfailingly cordial.
But if the Justices are polite in conference, the muzzles come off when they set pen to paper. For many years, the sharpest tongue on the Supreme Court belonged to Justice Antonin Scalia, whose stinging, highly quotable and sometimes quite personal dissents made him a hero to conservatives back when they weren't winning all the time. Now that they are, his operatic style has spread. You never know anymore, as you read an opinion, when the case law is going to give way to aggrieved wailings and self-righteous asides. Even Roberts, whose opinions are characterized by clear prose and occasional sports analogies, has been known to indulge from time to time.
Take the schools case from the 2006-07 term. On June 28, as the term was ending in a burst of 5-to-4 decisions, the court ruled on a controversy involving public schools in Seattle and Jefferson County, Ky. Parents had sued to end policies that classified children by race and--occasionally--used this data in determining which school students would attend. The goal of the programs was to make schools racially diverse even if neighborhoods were not.
The court has been deciding cases in this realm since before Roberts was born. As you might expect, given all that history, the unresolved issues were rather narrow. Author Richard Kluger once wrote of Brown, "Probably no case ever to come before the nation's highest tribunal affected more directly the minds, hearts and daily lives of so many Americans." All these years later, the Seattle and Kentucky cases affected "a few handfuls" of students in Seattle, according to lower court findings, and fewer than 1 out of 20 school assignments in Jefferson County.
Apparently, firing a popgun requires a lot more rhetoric than loosing a thunderclap. The unanimous court in Brown needed just 14 calmly crafted pages to deliver its ruling. The Roberts Court devoted 178 pages, in five separate opinions, to its narrow resolution of the smaller questions. And what did the Justices say in all those pages? Little, if anything, new. As the Rehnquist Court held in 2003, schools may not use simple racial classifications as the determining factor for admitting students. Administrators in Seattle and Jefferson County were advised to find more nuanced ways to achieve diversity.