On the other hand, I?d suggest that there is an equally powerful countervailing force at work on the justices. Because, as it happens, the current court is almost fanatically worried about its legitimacy and declining public confidence in the institution. For over a decade now, the justices have been united in signaling that they are moderate, temperate, and minimalist in their duties. From Chief Justice Robert?s description of himself as just an ?umpire? and his speeches about humility and the need for unanimity, to Stephen Breyer?s latest book Making Our Democracy Work?a meditation on all the ways the courts depend on public confidence. Roberts even nodded at that court-wide anxiety by devoting most of his 2011 State of the Judiciary report to issues of recusal and judicial integrity, and by reversing his own policy on same-day audio release, in order to allow the American public to listen in on the health care cases next week (albeit on a two-hour delay). That means that the court goes into this case knowing that the public is desperately interested in the case, desperately divided about the odds, and deeply worried about the neutrality of the court. (Greenhouse points to a Bloomberg News national poll showing that 75 percent of Americans expect the decision to be influenced by the justices? personal politics.) To hand down a 5-4, ideologically divided opinion just before the Republican and Democratic Party conventions, would?simply put?prove that 75 percent correct, and erode further the public esteem for the court. Justice Clarence Thomas doesn?t worry much about things like that. I suspect Chief Justice Roberts and Justice Kennedy worry quite a lot.
Source: http://feeds.slate.com/click.phdo?i=609f1861ad527d5158f49fa95d962534
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