Frustrating (and telling) myopia concerning criminal justice among SCOTUS elite

At SCOTUSblog, Tom Goldstein has this new and notable post about the gay marriage cases before the Supreme Court titled simply “Testing.”  I always respect Tom’s work and perspective on SCOTUS, but this post has a flourish concerning the conservative leanings of the court Supreme Court that reflects what I see as a persistent and problematic myopia concerning criminal justice issues now reflected in the view of many (if not most) of the elites who follow and discussion the work of the Roberts court.  Here is the passage that got under my skin (with one particular sentence emphasized by me):

The dilemma for gay rights advocates is that these test cases may be too much, too soon. Too much because Justice Kennedy — the decisive vote — is a conservative on a conservative Court, and many conservatives view heterosexual marriage as foundational.

Too soon because while our culture has rocketed ahead to acceptance of gay marriage, the Court generally rides a horse and buggy.  Often, that is just what we want: a Court that does not get pulled along by the tides of the moment.

To the political center and left, and to libertarians, the answer in these cases is now pretty obvious.  The Justices, on the other hand, are tradition bound, distant from the media, and insulated from cultural and political winds.  They may need more time before they understand this “new normal.”

To be clear: a Supreme Court decision recognizing the right of same-sex couples to marry is inevitable. Someday. But in twenty years, the Court will be different. It will have caught up with the country. But a majority may not be there yet.

Instead, these cases are a bolt from the blue.  Five years ago, serious people did not think these claims could be won before these Justices.  The notion that discrimination against homosexuals in marriage is unconstitutional is not “baked in” to our legal culture.

Without the time to adapt, this Court is unpredictable.  Take Bush v. Gore and Obamacare.  The constitutional claims in both cases were generally regarded as ridiculous. But the cases raced ahead to the Court.  And both claims won, with only the Chief Justice saving the health care statute.

That is why other historic test cases like Brown v. Board of Education are so different.  The NAACP controlled race discrimination litigation.  It built a body of lower court and Supreme Court decisions over years.  The Court had time to adapt before it had to decide.

And of course, Brown was decided by a very different Court.  You cannot point to many liberal test cases that won in recent decades.  Conservatives have won on guns and affirmative action; they lost on property rights.  But for pretty good reasons, the left does not even try.  Progressive groups spend all their energy keeping cases away from this Court.

Actually, with my focus on just trial and sentencing criminal justice issues (leaving out police practice cases and other kinds of cases that have a more mixed record), I can point to well over a dozen of what could (and probably should) be called “liberal test cases that won” in just the last decade.  Here is a partial list just off the top of my head that could surely be supplemented:

Crawford (2004)

Blakely (2004)

Booker (2005)

Roper (2005)

Cunningham (2006)

Kimbrough/Gall (2007)

Kennedy (2008)

Melendez-Diaz (2009)

Padilla (2010)

Graham (2010)

Skilling/Black (2010)

Pepper (2011)

Plata (2011)

Lafler/Frye (2012)

Miller (2012)

Notably, in most of these cases, more “conservative” lower federal and state courts were generally unwilling to recognize or extended a defendant-protecting doctrine, and the Supreme Court took up the case in order to rule (often boldly) on behalf of a criminal defendant.  And, “for pretty good reasons,” the criminal defense bar is persistently trying to get the Supreme Court to take up more cases and many progressive criminal justuce groups spend considerable energy keeping the Court busy with criminal justice cases.

I am a bit frustrated that Tom Goldstein does not in this context acknowledge that the Supreme Court right now is, in fact, acting in quite progressive ways on behalf of criminal defendants (which is, of course, one huge way in which the Warren Court established its liberal reputation).  But the myopia in his recent post strikes me as symptomatic of a broader failing among SCOTUS elites and (too) many progressive elites who fail to focus upon or even recognize the extensive harms being done to various vulnerable populations through modern mass criminal justice systems.