What political hot takes miss about the Supreme Court

Justices Elena Kagan and Amy Coney Barrett testified in House and Senate committee hearings about the need for increasing appropriations to support heightened security for the Supreme Court given recent serious threats to the safety of some of the justices, including Justice Barrett.

The level and nature of the threats the justices have experienced are unprecedented in our nation’s history.

Among possible relevant factors is the way that political leaders and media characterize the work of the court. It is not entirely surprising, though disappointing, that news outlets tend to speak of the court’s work in political terms as they do the actions of the political branches.

This is especially troubling because it deeply distorts what is actually happening. Some of the decisions of the just-concluded court session make this clear.

In a recent episode of the Defending Ideas podcast, Dr. Matthew Brogdon of the Center for Constitutional Studies at Utah Valley University described some of these decisions involving the constitutional status of immigrants and the constitutional scope of presidential power. His descriptions of the complex and nuanced issues involved in resolving these cases and of the care the justices take in making and communicating the rationale for their decisions were very helpful.

The “work product” of other branches of government is usually declaratory documents, like statutes or regulations, but the court produces written opinions with careful justifications, subject to the agreement or disagreement of other justices.

For instance, the decision on whether the president has power to issue an order that is potentially at odds with constitutional or statutory law, Trump v. Barbara, included six separate opinions filling just less than 200 pages, with the majority opinion joined by justices appointed by presidents of different political parties. The different opinions are scholarly and detailed; they relied on text and history, included sources, and responded to critiques from other justices.

This does not mean that all of the various opinions are equally convincing. If the issues that need to be resolved were straightforward and easy, they would probably not need Supreme Court review. Different justices take different approaches to their duty, and some are more faithful to the judicial role than others.

Media and political discussions of the court’s decisions, however, miss or elide most or all of this nuance.

Thus, the court issued a decision in a case involving an egregious abuse of power by a prison official. The official, defying clear legal guidance, had forcibly shaved a Rastafarian prisoner, a violation of his religious exercise. The legal question raised by the case was whether a federal civil rights statute allowed the prisoner to bring a lawsuit for damages against the prison official. Some, like me, hoped the answer would be yes because it seems so manifestly unfair not to have a remedy.

A majority of the court, though, held that the remedy sought could not be implied in the language of the law without a clearer statement. The court’s decision, and the dissenting opinions, made clear arguments. Deferring to the language adopted by Congress is precisely what the court should do, even if that means some important issues will need to be resolved by future legislative action.

Reading hot takes on the case, though, you could be forgiven for concluding that the decision came about because the court only cares about the religious freedom of Christians. This frankly ludicrous characterization ignores important religious freedom decisions involving minority religious groups, including Jewish and Muslim plaintiffs and coalitions of believers of different faiths.

As Professor John Yoo noted, “the Supreme Court term that just ended demonstrates – yet again – that the court does not decide cases with an eye to partisan winners and losers. . . . The court does not think in terms of Republicans and Democrats. It instead fights over much deeper differences between conservatives and progressives on constitutional interpretation.”

Not every involved citizen needs a law degree, but we can develop greater sophistication about the court’s role and question quick and dismissive takes on the court’s work. The court’s practice of releasing opinions publicly means it is willing to show its work. It is not too much to expect that commentators, press, politicians, and anyone eager to weigh in with a hot take will look at those opinions and rely on more careful observers to understand.