In Book Eight of the Odyssey, the blind bard Demodocus sings the story of the Trojan Horse. How after ten long years of war, the Greeks burned their camps and boarded their ships, leaving a giant wooden horse at the gates of Troy, a last testament to the years of strife and bloodshed. Three plans split the Trojans: whether they should hack open the great statute, toss it from a cliff, or leave it standing – “a glorious offering made to pacify the gods.” Deep in the night, after the third option prevailed, the crafty Odysseus, the “man of many ways,” poured forth from the statute’s belly: “And he sang how troops of Achaeans broke from cover, streaming out of the horse’s hollow flanks to plunder Troy – he sang how left and right they ravaged the steep city . . .”
When Roberts testified before the Senate Judiciary Committee during his confirmation hearings, he pledged in his opening remarks: “I come before this committee with no agenda, no platform . . . I will approach every case with an open mind.” Roberts promised that he was not an “ideologue” and spoke eloquently and intelligently about the principles of stare decisis – the idea that previous decisions of the court are not to be lightly overturned.
This term, the Supreme Court, led by Chief Justice Roberts, although primarily vocalized by the new swing vote Kennedy, planted several Trojan Horses of its own. While the recent decisions did not explicitly overturn previous cases, they left the laws or decisions they addressed hollow and nearly meaningless. This the Roberts Court’s respect for stare decisis: paying lip service to the past while ravaging it from within. Precedents that have now been cast into doubt range from Roe v. Wade to Brown v. Board of Education, and span topics from election law to individual standing.
The Court’s double-faced strategy, typically announced in 5-4 decisions, is not just duplicitous, but also creates bad law. Instead of overturning past decisions and announcing new precedent, a useful guide to lower courts, the Court has simply muddied the waters. For a man who pledged a deep and sincere reverence for the “rule of law” in his confirmation hearings, Roberts has been mighty willing to sign onto opinions that serve to obscure the law and its application while dragging the court further rightward and farther from its past decisions.
While it won’t be much discussed in the mainstream media during the fiasco known as the primary season, the next president will have an even more profound effect on the next thirty years of Supreme Court jurisprudence than the current make up. Kennedy, while he swings further right than O’Connor did, is still a moderating influence on the Roberts, Alito, Scalia and Thomas block. With constant speculation regarding Ginsburg’s health and with Stevens drawing all that closer to ninety, the next president will probably select a minimum of two new justices, both from the more liberal wing of the court. The war against the modern court precedents that have liberalized society and expanded individual rights may forgo the horse next time, figuring that the need for such a device is as “quaint” as the Geneva Conventions have been claimed to be.