Misreading the Court – – John O. McGinnis


The judiciary is the most important reasoning institution not controlled by the left. Universities are dominated by left-leaning professors, and the media by left-leaning journalists. In a superb article, Ralph Lerner recognized the political importance of the Court’s public reasoning, seeing it as a “republican schoolmaster” articulating the constitutional principles that should guide the polity. But the Court’s opinions are necessarily refracted for most citizens through journalists and academics, almost all of whom today are hostile to its views and to the justices in the majority. As a result, the current Court majority has far more difficulty than past Courts in putting its case to the American people.

Joan Biskupic’s Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences exemplifies the many ways that journalists today hinder the transmission of the Roberts Court’s ideas. Despite presenting itself as an account of the Court’s development since 2016, the book rarely describes the jurisprudential wellsprings behind the Court’s decisions, and when it does describe them, it is incorrect and biased. It also flattens and caricatures the justices most frequently in the majority as political actors who are moving the law in the direction of their political patrons. It also tends to personalize the justices’ disagreements, rather than recognizing the profound and legitimate contests over the nature of law.

The Roberts Court reflects the rise of originalism. Three of the justices—Thomas, Gorsuch, and Barrett—are originalists; Kavanaugh is likely an originalist; Alito is a self-described “practical originalist”; and Roberts has originalist sympathies. That does mean that in every case they will decide according to the original meaning: there is too much precedent in many areas to return fully to the original meaning of a provision. Nevertheless, by distinguishing and limiting non-originalist precedents, they do not infrequently move toward their view of original meaning.

Yet Biskupic does not explain the jurisprudential context. She rarely mentions originalism and when she does she gets it tendentiously wrong. For instance, she defines the “originalist approach as reading the Constitution in terms of its eighteenth-century understanding.” Originalism in fact asserts that the public meaning of a provision should be interpreted as it was fixed at the time it was adopted—a very different matter. First, what is relevant under originalism is not some diffuse understanding as Biskupic suggests, but the public meaning of its provisions. Second, the relevant time for fixing the meaning is the year that the provision at issue was adopted. Thus, not only is the meaning of the original Constitution fixed at a particular time—1789 specifically, not “the eighteenth century” generally—but subsequent provisions, like the Fourteenth Amendment, are fixed at the time that the Constitution was amended. Her definition makes originalism seem necessarily murkier than it is, and it also slights the important, more recent amendments—when we the people have exercised our enduring authority to change the Constitution.

Biskupic does not even connect originalism to the core holding of New York State Rifle and Pistol Association v. Bruen, which turned on the meaning of the word “bear” in the phrase “keep and bear arms” to show that there was a right to carry arms outside of the home. Instead, Biskupic suggests that Thomas “acknowledge[ed] that the Court was lifting up the Second Amendment over other constitutional rights by discarding the usual deference to legislative interests.”

This assertion is unjust. Justice Thomas never “acknowledges” that he was “lifting up” the Second Amendment over other rights. Moreover, it is hardly the case that, having decided that the Constitution provides a right, the Court typically provides “deference to legislative interests.” The New York statute at issue in this case, which Biskupic never bothers to describe, left it up to state officials to determine whether a law-abiding citizen has a “special need” before he was permitted to carry a gun outside the home. Would the Supreme Court ever hold that it is consistent with the First Amendment for state officials to have the discretion to decide whether someone has a special need before he could publish a newspaper?

Now it is, of course, possible to argue that Bruen was wrongly decided as a matter of originalism or that originalism is a bad theory of constitutional interpretation, as does Professor Erwin Chemerinsky, or that it is a cover for results justices want to make on other grounds, as Professor Eric Segall does. But Biskupic fails to describe, even in capsule form, the arguments for and against the jurisprudence. Instead, she frequently slants her coverage of cases so as not to give the majority opinions a fair hearing. In another instance, she complains that Alito’s history in Dobbs v. Jackson Women’s Health Association, the case that overruled Roe v. Wade, was “selective” without telling us in what way it was defective or partial. 

Rather than provide a close analysis of opinions, she provides a political context: It is the appointees of President Donald Trump who changed the Court, suggesting a kind of guilt by association. But the focus on Trump is misplaced. The justices he appointed—Neil Gorsuch, Brett Kavanagh, and Amy Coney Barrett—were the kind of appointees any Republican president would likely have made. Trump’s judicial appointments, unlike some of his other acts as president, united the Republican Party. That is why he shrewdly put out a list of potential candidates during his campaign. The real story is that these nominees all reflected the rise of originalism and textualism among conservatives—a trend that had been ongoing for decades.

The difficulties of our partisan times are all the more reason we need Supreme Court reporters who take the time to explain the justices’ reasoning and the jurisprudence that increasingly inspires them.

Another way Biskupic seeks to discredit the originalist-leaning justices is to characterize them with unfavorable adjectives rather than evidence. Alito in the course of less than a hundred pages is labeled as “testy,” “bristling,” and “angry.” According to Biskupic, “he wears a heavy cloak of grievance.” Even in dissent, Sotomayor never gets this kind of treatment. Rather, she is portrayed as a principled fighter for the poor. Justices like Alito, Thomas, and Gorsuch are characterized as on the “far right.” Justices Sotomayor and Ginsburg are never characterized as on the “far left,” even when they voted to invalidate on the basis of the Equal Protection Clause a Michigan referendum requiring universities to treat students and faculty equally in admission and hiring without respect to their race and gender.

Biskupic is also partisan in her characterization of confirmation fights. She claims that Robert Bork’s defeat prompted Republicans to look for “payback.” But even after the failed Bork nomination, substantial majorities of Republicans in the Senate supported the confirmations of Justices Stephen Breyer and Ruth Bader Ginsburg. Only after a large number of Democrats opposed John Roberts and almost unanimously opposed Samuel Alito did large majorities of Republicans begin to reflexively oppose Democratic Supreme Court nominees.

While this narrative will mislead readers who do not know enough to reject caricatures of opinions and justices, it offers little value to those who do follow the Court. (Josh Blackman has suggested that her inside knowledge of the Court has declined after Justice Ginsburg’s death.) Biskupic does claim that she uncovers the justices making deals behind the scenes, but her evidence for this proposition is weak.

The deal she most touts was supposedly between Justice Anthony Kennedy and the Chief Justice. After Obergefell v. Hodges declared there was a right to same-sex marriage, a dispute arose in Arkansas when the state denied the right of a same-sex couple to put both their names on a birth certificate. An Arkansas court upheld the denial. According to Biskupic, Kennedy wanted to summarily reverse, but needed one of the four Obergefell dissenters to do so, because summary reversals at the Court require six votes. At the same time, the Court was considering taking up a petition in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case where a baker had been fined for refusing to create a celebratory cake for a same-sex wedding when his refusal was based on his religious objections to same-sex marriage.

Biskupic notes that the Court summarily reversed the Arkansas case with the Chief Justice’s support on the same day that it granted review in Masterpiece Cakeshop. While Biskupic may claim to have undisclosed inside sources suggesting a deal, an agreement is not necessary to explain the summary reversal. The Chief Justice feels a stronger obligation to follow precedent even in slightly different factual circumstances than the other justices who dissented in Obergefell. Indeed, Biskupic herself describes a case, June Medical Services v. Russo, where Roberts broke with his fellow conservatives on the grounds that he felt the prior precedent in Whole Woman’s Health v. Hellerstedt controlled the result. Just as Biskupic often neglects the possibility that jurisprudence rather the political preferences drives Supreme Court opinions, here she may fail to recognize that jurisprudence not deal-making, drove Roberts’ decision.

Perhaps announcing the cases on the same day may have pleased Kennedy because it signaled that the Court was not retreating on gay rights. But the determination of whether to hear a case on the merits is discretionary. The famous legal theorist Alexander Bickel argued that political and policy considerations should inform the justices’ decision to hear a case even as they should rigorously follow the law when deciding the merits. The Supreme Court in fact may become freer from public pressure and thus more principled in in its decisions if it selects a propitious time for determining the law. In this case, the public may have been more willing to accept the bona fides of the religious exercise and free speech claims in Masterpiece Cakeshop if they were confident that it was not part of a rolling back of a recent decision. It was thus legitimate to combine the decision to take up Masterpiece Cakeshop with the summary reversal of the Arkansas case.

Originalism will endure only if it becomes part of our legal and public culture. It faces many obstacles in doing so. First, originalism, correctly applied, eschews consideration of policy benefits that might elicit the support of the public. Second, in a time of political polarization, fewer citizens are likely willing to protect the enduring framework of government safeguarded by originalism if it gets in the way of gaining a victory over their political and social enemies. Of course, these problems for originalism are part of what makes it appealing. If the Constitution is to protect Peter Sober from Peter Drunk (in the colorful words of Justice David Brewer), we need a philosophy of interpretation that does not bend to the political inebriation of the moment.

The difficulties of our partisan times are all the more reason we need Supreme Court reporters who take the time to explain the justices’ reasoning and the jurisprudence that increasingly inspires them, even if they are then critical of that work. Their job demands fair readings of decisions no less than originalism demands fair readings of the Constitution’s text.


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