X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Two questions have been haunting Supreme Court watchers this winter: Why has the caseload dropped to a historic low, and why are the justices suddenly seeking media exposure like Paris Hilton? The causes underlying these phenomena can be debated, but there’s no denying the connection between them. The only real question is whether the justices are hearing fewer cases so they can do more TV or are doing more TV because they have no cases left to hear. In December, Linda Greenhouse of The New York Times reported that the Supreme Court caseload had shrunk 40 percent since last term, when the high court issued only 69 signed opinions. Greenhouse speculated that the drop in the number of cases heard was the result of a confluence of historical factors: The federal government loses fewer cases in lower courts and thus feels no need to appeal; fewer dumb laws enacted by Congress means that the justices now have fewer statutes to interpret; the Court’s liberals and conservatives are both reluctant to grant cert on cases they may lose; and law clerks are too afraid to recommend cases. At the same time their caseload has been dropping, the justices have stormed into television studios like Iraqi insurgents into Anbar province. Justice Stephen Breyer has appeared on programs ranging from “Charlie Rose” to “Fox News Sunday.” Justice Ruth Bader Ginsburg invited CBS’s Mike Wallace into her chambers for a cozy schmooze. At 86, Justice John Paul Stevens did his first TV interview ever, with Jan Crawford Greenburg on ABC’s “Nightline.” But the “American Idol” moment came when Chief Justice John Roberts Jr. made his own appearance on “Nightline” in December. Roberts has already held a pair of press conferences and is participating in a new special about the Court currently airing on PBS. The justices may seem resistant to cameras in the courtroom, but get them outside the marble palace, and they’re ready for their close-up. WHAT TO DO, WHAT TO DO There’s no shortage of possible explanations for the justices’ new willingness to perch constitutional beach balls on their noses and clap for the cameras. Maybe they just have more time on their hands. Back in the 1980s, when the justices were hearing almost 200 appeals a year, there was no time for such frippery and vanity. All these speeches and interviews and debates take time � time to prepare, time to travel, time in the makeup chair. And if you’ve spent the past decade or so with a black robe covering your fraying cuffs and scuffed shoes, it also means shopping, visits to the tailor, and appointments at the salon to have your roots done. But when you’re down to just 60 cases a term, there’s loads of time to kill. And, let’s face it, when you’re in your 70s, singles bars and tattoo parlors have lost much of their extracurricular allure, and that damn YouTube is so confusing. Another possibility is that, instead of just killing time, the justices are united in their conviction that the best way to diffuse the growing national antipathy toward the judiciary in general, and the high court in particular, is to put a face to the institution, to smile and joke and invite America to love them. Clearly, they’re concerned about being seen as remote and out of touch. Ginsburg told Mike Wallace that she worries that “the Court is not always understood by the U.S. public.” And Douglas Kmiec of Pepperdine University School of Law told the Associated Press that Roberts’ media ubiquity is the result of a “burden of explanation” that the chief justice feels. The justices have long claimed that the judiciary is the most open of the branches because they must justify their actions in writing. But at some point they seem to have collectively realized that America ain’t reading. And so, in the fine tradition of the pharmaceutical industry, they have replaced all that fine print with infomercials. “Just trust us,” they seem to be saying. “We’re regular people just like you.” Another possible explanation: Maybe the justices believe that by allowing limited and closely controlled media openness now, they may forestall a larger and uninvited media invasion, namely, TV cameras recording the Court’s formal sessions. PLEASE LIKE ME There’s a final, disturbing possibility here. Both the love bombing by the justices and the drop in the number of cases may be symptoms of judicial fearfulness. Roberts has been trying to sell judicial minimalism as a model of his jurisprudential mission. At his confirmation hearings he explained that “nobody ever went to a ball game to see the umpire. . . . It’s my job to call balls and strikes and not to pitch or bat.” And last spring at Georgetown University he opined that “if it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.” If we take him at his word, it seems that Roberts wants to defang the courts by ensuring that they do almost nothing. And at some point, if you’re doing almost nothing with your cases, it hardly makes sense to take more of them. Breyer recently held a public debate with Justice Antonin Scalia in which they pointed out that narrowness and humility are not necessarily virtues. As Scalia observed, any case can be reduced to a narrow, technical holding, but it serves neither the lower courts nor the country to do so in every instance. Whether the justices are simply hiding from the hard cases or just gaming them for political reasons, the result is the same: a Court too frightened of a testy American public to do its job. And that’s where the Supreme Court charm offensive comes in. Because from Ginsburg to Roberts to Breyer, the one thing these jurists seem to agree upon is that if the American public “knew” them, the American public wouldn’t be afraid of them. So at the same time the Court is declining to hear controversial cases, its justices are trying to show the country how unthreatening and lovable they really are. There is something slightly frightening about a Supreme Court trying to prove to a peevish citizenry that it is not really all that frightening. At the end of the day, isn’t it better to have a Court that is secretive and elitist and doing its job than a Court that is open and friendly and doing nothing at all?
Dahlia Lithwick is the Supreme Court correspondent for Slate . This article originally appeared in The American Lawyer , an ALM publication.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.