If it’s late September, that means it’s probably time for the annual bumper crop of Supreme Court previews: the “curtain-raiser” articles outlining the biggest cases the justices are set to hear during the term that begins on the “first Monday in October.” So too does the last week of September usher in the season of high-brow public seminars featuring members of the Supreme Court bar and legal academy predicting how the court is likely to come out in those cases. If you’ve paid attention this year, you could almost be forgiven for thinking that nothing much matters at the court this fall besides the two most headline-generating merits cases: Dobbs v. Jackson Women’s Health Organization—a challenge to Mississippi’s 15-week abortion ban in which the justices have been asked to overrule Roe v. Wade—and New York State Pistol & Rifle Association v. Bruen, a Second Amendment challenge to New York’s restrictive licensing regime for the public carrying of firearms. You also likely will read some insider gossip about how moderate the conservative wing of the court has actually been—the justices eat meals together without fighting, you know. And they will even tell you themselves that they are not at all partisan, and should never be presented in the press as such.
Take these seemingly neutral previews and claims of judicial centrism and moderation with a healthy grain of salt. Rather than endlessly preview the term, we think it might instead be a useful time to consider how we consume news from and about the high court. To put it directly, what you are not hearing about the court as the curtains come up on its 2021 term is likely to be as important as what you are. To truly follow the Supreme Court in 2021, one must challenge the terms on which most public discourse about the court even takes place. As a remedy, here is our brief guide to being a better consumer of SCOTUS news this term.
First, we have the “good facts for Netflix” problem. Last term, most previews (and recaps) of the Supreme Court’s term included detailed coverage of the case of the cursing cheerleader, a case about whether a school district could discipline a student for taking to SnapChat to complain about not making the varsity cheerleading team. The case was made for TV: there were swearing teens, milkshakes, and frowny school administrators; a latter-day Breakfast Club. It garnered massive media attention. Ultimately, by an 8-1 vote, the court said no such discipline was allowed—in a completely unsurprising decision that everyone predicted and had virtually no effect on First Amendment doctrine going forward.
But because the dispute was one to which we could all relate, the case figured prominently in coverage of the court. Contrast that with a trio of vitally important separation of powers cases—two involving constitutional limits on the appointment and removal of executive branch officers, and a third concerning Congress’ power to authorize broad classes of consumers to sue credit-reporting agencies for violating statutory rules. Those cases—United States v. Arthrex, Inc., Collins v. Yellen, and TransUnion LLC v. Ramirez—got far less attention both before and after they were decided, even though they got sharply divided rulings and ended up effectuating an immense shift of power from Congress to the Executive Branch and the courts. This coming term, a series of cases about Medicare reimbursements will implicate far more fundamental questions about the continuing vitality of the modern administrative state—but it is dense and complicated and therefore likely to be ignored.
Even within the subset of cases on which public attention is focused, we have a tendency to accept the framing of the debate in terms that can obfuscate the significance of what the court is actually doing. Last term, for instance, the headlines about the Supreme Court’s major religious liberty ruling in Fulton v. City of Philadelphia were that a majority of the justices had not overruled a 1990 precedent—rather than noting that all nine of the justices had significantly limited the circumstances in which religious groups could be excluded from providing public services because of their discriminatory views. “Look how moderate the conservatives are” dominated over “look at what the progressives have been forced to agree to.”
The same wrong-headed framing is already distorting discussion around this term’s major abortion case—where almost all of the public discourse is focused on whether or not the court will formally overrule Roe, even though a ruling could affirm Mississippi’s 15-week ban without overturning Roe and still be an enormous victory for anti-abortion groups, and would be an enormous (even if expected) doctrinal shift. The court’s initial decision to even hear a case about a patently unconstitutional law, a year after reaffirming Roe was a radical act, and now, in the wake of its allowance of Texas’s six-week ban, public sentiment about reasonable (if unconstitutional) regulation has already begun to shift the Overton window. In the same vein, the high court’s failure last term to overrule the Affordable Care Act in a crackpot lawsuit, or to take seriously the efforts by Donald Trump’s Kraken attorneys to set aside the results of the presidential election are cast as breathlessly moderate acts when instead the fact that these cases were even being pressed in the courts is the truly radical, if under-reported, shift. We shouldn’t hand out participation trophies merely because the justices refused to jump off the cliff.
It’s also invariably a fool’s errand to try to sort out the cases that will define the term based only on what’s on the docket at the end of September. So far, for instance, the justices have only agreed to resolve 31 distinct cases on their merits docket. That’s well under half the total number of cases the court has been deciding in recent years. Thus, what the court adds to its docket as the term goes on will be just as significant a part of the story—we just don’t know what it is yet.
Finally, there is the related but wholly distinct problem of accounting for the “shadow docket,” the court’s increasingly prominent use of emergency orders to resolve high-profile disputes through unsigned, and often unexplained decisions that can end up standing for broad new interpretations of federal statutes or even the Constitution. By volume, these disputes are now competing with the merits docket. Last term alone, for instance, the court granted 20 different applications for emergency relief—the most granted in a single year in the court’s history. And these rulings were more split this year—three or more justices publicly dissented from 29 different emergency orders, compared to 14 the previous year. For obvious reasons, it’s impossible to predict these disputes in advance—because they are, at least putatively, all styled as emergencies. But that doesn’t make them any less an important part of how the court’s work affects us all—as the recent ruling on Texas’s controversial abortion bill drives home.
The point is not that these shadow docket orders are equally important data points in any assessment of the court’s work; it’s that including these data points may well change what that assessment looks like. The Justices look far more sharply partisan on the shadow docket than on the merits docket, yet those numbers are rarely included in end-of-term tallies. Similarly, the court looks far more political when one accounts for what it is actually deciding versus what it is not deciding. And the notion that the justices are simply calling balls and strikes is increasingly difficult to reconcile with the court’s institutional behavior—and the justices’ individual behavior—in contexts outside the written pages of Supreme Court decisions. It’s all part of the story—or at least it should be. Unless we weight obscure decisions that fundamentally alter the structure of government as more consequential than decisions that affect a single high-schooler, unless we account for actions the court takes in unsigned orders, and unless we stop telling a court-approved fable about unanimity in decisions that in fact change doctrine, we are not reckoning with the full scope of the court’s actions each term.
In a speech riddled with irony, this may have been the central problem with Justice Amy Coney Barrett’s recent remarks at the McConnell Center. In blasting unidentified members of “the press” for portraying the justices’ merits decisions in partisan terms, the court’s newest member highlighted how much it’s in everything else the court does, either in the shadows or in public appearances, that is making its increasingly partisan nature become even clearer. Multiple recent polls show mounting public concerns about the court’s legitimacy. That full picture is what we all need to be watching, as opposed to tallying wins and losses on a scoreboard that often records only a fraction of the game.