There Are No Liberals on the Roberts Court

An exchange in yesterday's oral argument illustrates the subtle ideological imbalance of the Roberts Court. The case was Schwarzenegger v. Plata. Plata concerns a federal-court order that California reduce the number of inmates in its prisons. The prison system's overcrowded state had caused medical and mental-health care to degenerate so sharply that the state was violating the Eighth Amendment's ban on "cruel and unusual punishment." A federal statute authorizes a special court, as a last resort, to order states to reduce their prison populations. One of the two cases in Plata had been pending for 20 years, through scores of delays and missed deadlines by the state; a court finally made the order, and California was appealing.

Donald Specter of the Prison Law Office in California was arguing for affirmance of the prison-release order. Cheif Justice Roberts suggested that a state might find itself whipsawed between different federal courts enforcing different provisions of the Constitution, each ordering costly remedies. Specter and Roberts had the following dialogue:

CHIEF JUSTICE ROBERTS: It's a budget prioritization that the State has to go through every day, and now it's being transferred from the State legislature to Federal district courts throughout the State.
MR. SPECTER: Well, I believe the Federal courts have an obligation to enforce the Constitution and the laws.
CHIEF JUSTICE ROBERTS: No, no. I believe that as well, Counsel.
What I'm saying is that you have conflicting orders from different district courts telling them: You have got to comply with the Constitution by spending 8 billion here and another court saying: I have got another constitutional problem of my own, and you have got to spend 8 billion over there. What is the State supposed to do in that situation?
MR. SPECTER: Well, my simple answer to your question, Your Honor, and I don't mean to be flippant, but they're -- they have an obligation to follow the Federal law, the constitutional law, and other laws. And if they are not, then the Federal court has an obligation to impose a remedy.

The exchange was civil. But it takes courage to stand your ground against the sometimes irascible Chief Justice, and give again the same answer he has already brushed aside. I heard in it an echo of an old style of constitutional discourse. Consider this colloquy, in the 1953 oral argument in Brown v. Board of Education: each state was free to "weigh the advantages and disadvantages of segregation," one Justice suggested to Thurgood Marshall.
The answer, by Thurgood Marshall, was, "That is . . . a legislative policy for the state legislature. But the rights of the minorities, as has been our whole form of government, have been protected by our Constitution, and the ultimate authority for determining that is this Court. . . . Whether or not I, as an individual, am being deprived of my right is not legislative, but judicial."

My point is not that there's something wrong with Roberts's question. It's an important question, posed civilly; and the stubborn answer was graciously received. The question of impact on institutions is one that every court dealing with complicated individual rights cases has to grapple with. But sometimes the answer is the one given by Marshall and Specter: Sometimes things are so bad that courts have to do what's right. Sometimes the interests of the powerless have to come first.

In the new century, we seldom hear that answer in constitutional law.

In other words, there's a voice missing in this Court, one we used to hear much more often in days gone by. It's common to speak of this Court as having a "liberal wing" and a "conservative wing." But this Court has no real liberals on it, in the mold of Earl Warren, William Brennan, or Thurgood Marshall. The "conservative wing" is there, self-assured and aggressive. But arrayed against it is a group of cautious, pragmatic centrists, who are very willing to engage in the kind of calculation Roberts was concerned with, and less willing to speak from the heart about individual rights.

In fact, it's hard for anyone to get away with that kind of talk on this Court. The conservatives won't allow it. Earlier in the argument, Carter Phillips, representing the state of California, had repeated several times his contention that the district court's order was "extraordinary." Justice Sotomayor stepped in: "Slow down from the rhetoric and give me concrete details about" what the court should have done, she said. Phillips began to invoke the dignity of federalism, saying that the court should have given the state more time to work out its own solution. Sotomayor responded quickly, "When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?"

Before Phillips could respond to this uncomfortable question, however, Justice Scalia jumped in to defuse it with mockery. "And don't be rhetorical," he said, to general laughter. Silly Sonya, worrying about befouled, neglected inmates! Can we get back to real law?
Contrast Scalia's slap with an exchange later in the argument. Justice Alito asked Specter whether the court's order would increase crime rates in the state. Specter responded that the court below, after a trial, had determined as a fact that it would not. Experts who testified--even the experts hired by the state--overwhelmingly agreed that the target could be reached by releasing older prisoners, stopping the jailing of technical parole violators, and housing some prisoners out of state.

Alito didn't care. Screwing his face into his trademark curdled-milk fleer of contempt, he threw his hands in the air and exclaimed, "The experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. We will see, and the people of California will see. Are there more crimes or are there not?"

No one stepped in to say (as Scalia did to Sotomayor), "Oh, Sam, don't be such a drama queen." No one pointed out that it's not really proper for an appellate judge to throw a tantrum because the record doesn't support his ingrained policy beliefs. No one mentioned that appellate courts are by law supposed to be bound by the factual record before them.

The fireworks and passion in this Court are all on the right. The moderate bloc tries to answer mildly, with reference to caselaw and to the record, while Scalia and Alito throw out fireballs for the op-ed writers to recycle.

Donald Specter, who has devoted his career to advocating for prisoners, was a most impressive advocate. He was up against Carter Phillips, one of the best Supreme Court lawyers of his generation. Specter matched him blow for blow, and refused to be intimidated by Roberts or Alito; and he did it in a quiet, measured voice, never rattled, never irritated, never intimidated: Mr. Rogers with a law degree.

But his mild voice sounded like the sea in that sterile hall; it carried echoes of great cases, and great judges, of the past.

When the argument was over, the Justices retired behind their curtain. They will meet and decide the fate of the prisoners, and of the the state of California. Both sides have important points in their favor. The needs of federalism, and the institutional prerogatives of legislatures, are serious factors. Courts need to weigh.

But there are other factors that must be weighed as well. In this Court's secret chamber, will a voice be heard that says, when all is said and done, "they have an obligation to obey the law"?
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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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