A Court without context

Conor Friedersdorf has a blog asserting that the current iteration of the Supreme Court is not reactionary or partisan, based on a superficial analysis of 13 merits cases from a single term. The problems with this mode of argument will be obvious to anybody who knows anything, although Mark Joseph Stern goes into a little more detail:

SCOTUS journalism is challenging because, at this level, both sides have all the resources and brainpower necessary to construct a compelling case for their view of the law. Often, a reasonable person could read both sides' briefs and easily conclude that both sides are correct.— Mark Joseph Stern (@mjs_DC) August 1, 2023

A good legal journalist investigates the origin of a particular case, scrutinizes the development of the legal theory, studies its trajectory in the lower courts, and assesses why at least four justices voted to take it up now. What do they intend to accomplish with this case?— Mark Joseph Stern (@mjs_DC) August 1, 2023

A good legal journalist examines the evolution of an idea—like the independent state legislature theory, or the race-blind vision of the Voting Rights Act—to see how interested parties transformed policy goals into legal arguments that *sound* plausible, at least on the surface.— Mark Joseph Stern (@mjs_DC) August 1, 2023

The point is: A good legal journalist does not take the Supreme Court at face value, whether they agree with an opinion or not. This job requires substantial background knowledge of the law, deep familiarity with precedent—and a grasp on how, exactly, cases wind up at SCOTUS.— Mark Joseph Stern (@mjs_DC) August 1, 2023

The question of the ideological orientation of the Court requires systematic analysis, not looking at some merits opinions from a particular term, and the evidence about the current Court is not ambiguous.

Let’s provide some context for some of the case areas that Friedersdorf discusses:

Voting rights: In isolation, this is the strongest evidence that the Roberts Court is not partisan, as the Court actually enforced the Voting Rights Act and (mostly) rejected the “Independent State Legislature” theory. Which is why you shouldn’t discuss cases in isolation!

With respect to Allen v. Milligan, the biggest problem is what Friedersdorf does not mention — notably, Shelby County and Brnovich, cases that have 1)almost totally gutted what was the most important civil rights statute since Reconstruction with 2)opinions that are the relatively rare Supreme Court opinions are not legally defensible on their face that 3)give state governments tools to make it harder to vote that are used almost exclusively by the party that nominated the justices in the majority. That’s quite a context to omit when asserting that the Court is neither partisan nor reactionary! In addition, it’s worth noting that the decision hasn’t actually been implemented yet because Alabama is refusing to. So let’s not give the Court even narrow credit here unless they actually follow through, which Kavanaugh’s concurrence as well as the Court’s fierce hostility to the Voting Rights Act in general suggests they will not.

Moore v. Harper shows another problem with evaluating the Court by looking at isolated cases. The case had a “liberal” result, but a Court not controlled by reactionary Republicans would never have heard this farcical cases in the first place, and it’s disturbing enough that a theory that state legislatures are completely unaccountable in the context of elections got three votes.

Affirmative Action: It’s true that the Court’s holding that affirmative action in higher education squares with public opinion and is not indefensible on its face. There is, however, an obvious piece of context here: most of the Republican-nominated justices claim to be “orginialists,” but the claim that the 14th Amendment was originally understood as forbidding even racial classifications designed to redress systematic inequalities is about as indefensible as it’s possible for a historical argument to be.

Public accommodations law: Friedersdorf likes the opinion in 303 Creative because of its superficial minimalism. Leaving aside that the Roberts Court’s apparent minimalism is often dishonest, the fact that this was a completely fake case and the Court reached out and decided it anyway strongly suggests that it will not be minimalist about using claims of religious freedom to undermine public accommodations law.

Student debt and presidential authority: Here, Friedersdorf’s argument (which of course supports the Court’s opinion) is long on arguments from authority (that are not about Biden’s specific action) and does not even cite the relevant text of the statute the Biden administration relied on: the HEROES Act giving the executive the authority to “modify or waive any statutory provision” related to student debt in the context of a narrowly defined emergency (with the COVID pandemic clearly qualifying.) He also does not even address the Court’s Republican nominees ignoring their own long-standing positions on standing to grant it to a plaintiff who suffered no injury whatsoever from Biden’s program. And finally, Friedersdorf ignores that the Court was completely deferential to uses of delegated emergency power by the Trump administration in cases such as diverting funds to build the border wall and to impose tariffs. I think that the “major questions” doctrine is contrived nonsense, but even if one disagrees one has to explain why it seems only to apply to administrations to which the Supreme Court is ideologically hostile. Not only does Friedersdorf not address these questions, his useless methodology prevents him from even asking them.

This term will not be the worse of the new Republican supermajority, but it is nonetheless only “evidence” that the Court is not partisan or reactionary if you don’t understand how to assess Supreme Court decision-making.