As the Supreme Court term starts today, it's worth considering Barry Friedman's article arguing that the Roberts Court has been less consequential than had been expected:
As late as 2003, the Court handed down mega-decisions on controversial issues such as gay rights and affirmative action. However, major decisions like those are becoming few and far between. The firecracker-turned-fizzle of the voting rights case is an increasingly typical outcome from a Supreme Court that appears to be receding from its central role in American politics.
There is a certain amount of truth to this, and Friedman's point about the political constraints on the Court are particularly useful. I would add a caveat, however. The centerpiece of Friedman's argument is the Court's decision not to overturn a major provision of the Voting Rights Act. I agree with Friedman's take on the case in general. But as an example of Roberts Court "minimalism," it's anomalous because the minimalism was substantive rather than just formal. In cases concerning campaign finance, standing, and abortion rights the Roberts Court has used the nominal refusal to overturn precedents to mask significant conservative shifts in the law. The Voting Rights Act case was unusual because the trick wasn't possible: A major shift would have required striking down a popular law in a highly visible way. But it's likely that this will be the exception, rather than the rule, especially given how unusual such bipartisan legislation has become.
It's possible that the 2008 elections will have a constraining effect on the Court, and it may choose to avoid publicly visible "blockbusters." But it's important to remember that the Court can affect major changes in non-blockbuster cases, and -- precisely because doing so limits the Court's public exposure -- in some ways the strategy is even more dangerous.
--Scott Lemieux
