Suggestions for helping the Roberts Court deal with shrinkage

Time magazine has this great cover story on the Roberts Court.  The piece is entitled, “The Incredibly Shrinking Court” and here are some (of many) highlights:

As the dust rises and the opinions, concurrences and dissents pile up, the court turns its attention to ever smaller cases related to ever narrower points of law.  There is, it seems, an inverse relationship between the passions expressed in judicial writings and the import of the cases that inspire them. In the midst of these battles, no one seems to have noticed that the stakes have diminished….

The familiar hot-button controversies — abortion, affirmative action, the death penalty, police powers and so on — have been around so long, sifted and resifted so many times, that they now arrive at the court in highly specific cases affecting few, if any, real people. And it’s not clear that Roberts wants to alter that trend.  His speeches on the judicial role suggest a man more interested in the steady retreat of the court from public policy than in a right-wing revolution.  Unless the Roberts court umpires another disputed presidential election (à la Bush v. Gore in 2000–a long shot, to say the least), the left-right division will matter mainly in the realm of theories and rhetoric, dear to the hearts of law professors and political activists but remote from day-to-day existence.  What once was salient is now mostly symbolic….

A sense of proportion is among the defining qualities of a judge.  Yet the Roberts Court so far is better known for making symbolic mountains out of real-life molehills.

Though the Time piece suggests that the new Chief is not troubled by the shrinking court, I am troubled by the Court’s Constanza-like shrinkage experience.  Of particular concern to me is the Court’s repeated tendency to shrink like a frightened turtle from an array of important questions ranging from procedural rights at sentencing to extreme mandatory sentences to residency restrictions.

Consider, as but one example, the meaning of the Fifth and Fourteenth Amendments’ Due Process Clause at sentencing.  The Justices have not addressed this issue head-on since the mid 1980s in McMillian, and the very-dated 1949 Williams decision is still a leading precedent.  And yet, with well over a million felony sentences imposed every year, roughly 4000 “real people” are impacted by sentencing procedures every single day the nation’s courts are open for business.  I sure wish the incredibly shrinking Court would come out of its shell to take a modern look at what the Due Process Clause means at sentencing.