My ConLaw professor was, and is, a really good teacher. I’ve met and had teachers who went through the motions so they could collect a paycheck. He was different — he actually gave a damn about the law and how judges ought to interpret it. He was also probably like your ConLaw professor in some respects. He once clerked for a Supreme Court justice. He taught the Commerce Clause (and its inverse). He assigned us 100 or so pages of War Power jurisprudence on Monday to discuss on Wednesday. I didn’t do the reading, but the conversation was quite lively. He also probably didn’t give us the most accurate picture of the process Supreme Court judges go through when they make decisions*. While the process we were taught to apply to statutes (read: the final exam) was consistent, I’d like to think everyone in the class knew that the process was more School House Rock than real world. Decisions at the Supreme Court involve more than two pronged strict scrutiny tests. They involve a lot more handshakes and favor than most Americans are aware of.
Chief Justice John Roberts privately lobbied fellow conservatives to save the constitutional right to abortion down to the bitter end, but May’s unprecedented leak of a draft opinion reversing Roe v. Wade made the effort all but impossible, multiple sources familiar with negotiations told CNN.
In the past, Roberts himself has switched his vote, or persuaded others to do so, toward middle-ground, institutionalist outcomes, such as saving the Affordable Care Act. It’s a pattern that has generated suspicion among some right-wing justices and conservatives outside the court…Roberts’ persuasive efforts, difficult even from the start, were thwarted by the sudden public nature of the state of play. He can usually work in private, seeking and offering concessions, without anyone beyond the court knowing how he or other individual justices have voted or what they may be writing.
Developing a legal understanding has its challenges. For one, getting a JD is getting more expensive over time. Once you’re in, you are trained in the school house rock manner; legal outcomes are what they are for a clear reason. Cite textualism or fanboying over the writing talents of Scalia, but as you get deeper into the interpretive tradition of lawyering, justifying outcomes with a hand waive and “it depends” becomes more and more sophomoric. And yet it moves.
The final decision flouted the court’s traditional adherence to judicial restraint and precedent. Polls show public approval of the court falling significantly, as the decision has been regarded as a product of politics rather than neutral decision-making.
A long tradition paints the Court, all of them, as neutral agents simply answering the dictates of the Law. We are expected to imagine the Supreme Court as an enclave of 9 black cloaked umpires merely calling balls and strikes. But time after time, the decision making process has been exposed as being more in line with calling the shots or making deals. This is before you factor in judges that find children guilty of violating laws that don’t even exist. We do future generations a disservice if we maintain the narrative that judges are neutral parties, especially in high stakes cases. Attention needs to be drawn to the black box that goes into how Supreme Court justices go about determining the rules that will dictate our lives. It is unlikely they will do so on their own — they swear up and down about their non-partisanship despite clear evidence otherwise and its not like some code of ethics will force them toward honesty. The duty falls on the shoulders of teachers and those of us who are aware of what’s going on to call it out for what it is. While the notion that the Court is the neutral branch is beautiful and noble, it is also a noble lie. Folks won’t be buying “it depends” masquerading as “deeply rooted traditions in the nation’s history” for much longer. I’d hate to see the approval rating drop lower than it already is once they do.
*In my professor’s defense, he probably did give an accurate picture of the process. I give him the benefit of doubt because, I am shamed to admit, I slept through a good bit of his lectures. It was me, not him! I’m just not a morning person. It even got to the point that I’d slam an energy drink to force my eyes open, only to come to to the shuffling of books and a rapidly emptying auditorium. I’m sorry Magarian. I really am.
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at firstname.lastname@example.org and by tweet at @WritesForRent.