Is the U.S. Supreme Court Losing its Relevance?

[WSJ_law_blog]

This is the week, it seems, when the nation’s headier publications gin up their Supreme Court previews. Many of these do yeoman’s work covering the main storylines — the arrival of Justice Sotomayor, the growing influence of Justice Alito and Chief Justice Roberts, the hotbutton cases, and the like.

But others step back and take a big-picture look at the court to try to uncover what’s already happened and what’s likely to happen. Such is the case with a piece in the New Republic, out Thursday, by NYU law professor Barry Friedman, entitled, simply: “Benched. Why the Supreme Court is Irrelevant.”

Friedman’s main point: that the court is more regularly punting on the big issues of the day. He writes:

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. . . .

As the justices prepare to take their seats for the start of the new term on the first Monday of October, it’s worth examining why the big news at the end of the last term was what the Court didn’t do. At the start of the term, Court-watchers were decrying the lack of any big cases; by the end, the story was how the justices ducked even in the ones they had. And, despite some October promise, don’t expect a blockbuster term this year either. The situation is structural and unlikely to change anytime soon.

Friedman writes that the Roberts court has assiduously “looked to avoid trouble,” and has managed to do just that by taking fewer hot-button cases and by handing down rulings on relatively narrow grounds on the big cases they have decided to take.

Why the restraint? Friedman says that it’s largely a matter of politics: “Time and again throughout history, when the Court has run afoul of popular politics and the political branches, the justices have paid a price.” The biggest threat to the current court, which tends to tilt to the right: the Democratic Congress.

Writes Friedman:

Is it a coincidence that the first bill Barack Obama signed into law was the Lilly Ledbetter Fair Pay Act of 2009? Lilly Ledbetter was the lead player in Ledbetter v. Goodyear Tire and Rubber Co., a 2007 Roberts Court decision that adopted a stingy interpretation of when cases could be brought under the equal-pay provisions of federal law. Congress tried immediately to overturn the decision; when Republicans blocked the effort, it became an issue in the 2008 campaign. Adoption of the Ledbetter law reminds the conservative justices that they are being watched. (At least twice this past term, Justice Ruth Bader Ginsburg overtly appealed to Congress to undo what her conservative colleagues were doing; dissenting in another voting rights case, she pointedly noted, “Today’s decision returns the ball to Congress’ court.”)

The likely end result, writes Friedman? Not an inspiring one for conservatives, nor a particularly threatening one for liberals: “[D]on’t expect much in the way of blockbusters from the Roberts Court anytime soon. 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.”