When Dahlia Lithwick started reporting on the Supreme Court, there was this schedule. The first Monday in October, reliable as pumpkin spice lattes, the justices would start hearing arguments. They’d issue their most important rulings just in time for summer. Then, traditionally, they’d disappear.
The Supreme Court season—the luxurious breaks—it always made Lithwick roll her eyes. This schedule still dictates how a lot of people talk about the court. When you open up the paper this week, you are going to read about the new term. Reporters will speculate about upcoming oral arguments the same way TV guide used to point you to fall sitcoms. Even though this year, everybody worked all summer.
Instead of taking a break, the justices kept issuing opinions, using an emergency docket. They weighed in on immigration, abortion, President Joe Biden’s eviction ban—always weighted toward their conservative supermajority. And then, many of the justices went on a kind of friendship tour, looking to convince people they were nonpartisan. “In the last two weeks alone, we’ve had three justices out making very, very vocal public proclamations that they are not partisan hacks,” Lithwick said.
The problem is: Many Americans don’t seem to be convinced. “The Gallup numbers that came out last week were 37 to 40-ish percent approval, the lowest since Gallup has been polling,” she said. “It’s trending badly. It plummeted in just a matter of months.”
With the justices settling in for a new term—with cratering public approval—I wanted Lithwick to decode what’s going on here, so I had her on Monday’s episode of What Next to tell me how to see a Supreme Court that seems to be turning itself inside out. Our conversation has been edited and condensed for clarity.
Mary Harris: I feel like I first started seeing this divide in how people are talking about the Supreme Court at the end of last term, because there were a few of these unanimous decisions that suggested agreement between the justices. ABC described it as “bonhomie.” They were sort of trying to imply that things are fine, everything’s OK. Can you really quickly sum up why is that not true?
Dahlia Lithwick: Whenever you hear about the “astonishing bonhomie,” whenever you hear Justice Breyer talking about how well the justices get along, it’s as though getting along is the same thing as agreeing on cases. And this was always the Scalia-Ginsburg story.
Because they were close.
Because they were best friends, and they adored each other, and they each thought the other hung the moon, and nobody could believe that. Everyone thought that was a stunt. It wasn’t a stunt. They adored each other. It doesn’t mean they agreed on cases or how to do law or on almost every big important question.
We have this idea that as long as people aren’t punching each other in the mouth, they’re agreeing. And at the court, the idea that the justices aren’t pulling each other’s hair doesn’t convey what is happening on the docket. Nobody is putting frogs in anyone’s lunchboxes. But that doesn’t tell you anything!
Another thing that distracts us from the more consequential actions of the court are the flashy cases. The cases that might not affect us, but that are immediately understandable, and relatable, and so they get a lot of coverage. This past term, there was a literal case of a cursing cheerleader. This was a dispute about whether a Pennsylvania school district was wrong to punish high schooler Brandi Levy for cussing at a convenience store called the Cocoa Hut and posting her rant on social media. Flashy case? Sure. Big ramifications for free speech? Well, not really.
To be clear, Brandi Levy, the swearing cheerleader, amazing fun facts. And she’s not just saying the F-word four times on Snapchat, and she’s doing it at the Cocoa Hut. Every piece of it is delicious. And it kind of warranted so much coverage because the facts were delicious. And in the end, it was a bit of a fizzle. The court didn’t decide anything singularly important. We just love to tell those funny cases with funny stories and we do that every year.
But there’s another problem that I’m only starting to be able to name, which is: We describe the case that’s coming. We describe what happened in the lower courts. We describe the stakes. But we can say this swearing cheerleader case is going to finally clarify once and for all the contours of student speech on and off campus, but if the court doesn’t do all that, then we just look kind of dopey.
The best example of this, of course, is this time last year, everybody was saying Amy Coney Barrett is going to strike down the Affordable Care Act. And then, she didn’t vote to do that. In fact, the court just kicked that case to the curb.
Then you say, “Oh, she’s a moderate.”
“She’s super liberal!” So what I’m starting to realize is that part of the problem is that the Supreme Court press corps and the court watchers and the advocates are telling a story about what their best guess about what might happen is and that’s, again, all we can do. And by the way, the press corps does it phenomenally well, but then they’re kind of pitted against a Supreme Court that actually makes very strategic decisions about what they do and how, and they hold all the cards in that game. The reporters hold no cards.
Can we look ahead? Let’s talk about Dobbs v. Jackson Women’s Health Organization. This is the Mississippi abortion case. It’s going be heard in December. How should we think about this case, given how you’ve been thinking about coverage of the Supreme Court?
It’s almost impossible to look at Dobbs without seeing that it is happening in the shadow of Texas’ S.B. 8. If the court had enjoined S.B. 8, the court would have looked unbelievably judicious. Imagine how much credibility it would have had going into the Dobbs case, because it would have just said, “As a principle matter, we have to be consistent. You can’t just take away people’s constitutional rights by a trick of drafting.” But oops!
You’ve said how the true shift is in some way that cases like this one, like this Mississippi case, are being brought at all because it’s so aggressive to even try to ram something like this through. Can you explain that a bit?
Part of this is simply the optics, and the optics is meant to be that if the court decides a seminal abortion case in 2016, you don’t bring an abortion case the next year. It’s just unseemly to come back to the court and say, “Oh, but now we have Kavanaugh. So now we think we’re going to do it again.” Or, “Now we have Gorsuch.”
And that’s in effect what Dobbs is. It’s saying, “Well, now Amy Coney Barret’s on the court.” And maybe the best evidence of that is that when Mississippi initially wanted to press this case, they were making arguments about 15 weeks and fetal pain. By the time this case is brief at that the court, they’re asking to overturn Roe.
Even the ask is shooting for the moon. That’s part of the equation. But the fact that the court would agree to hear a case that was quite aggressively devised to arrive at the court to overturn Roe, and where the parties are now seeking to do a thing that nobody would have asked the court to do in prior iterations of these cases, the appearance is quite awful. Also it raises these real questions about the value of precedent and stare decisis.
Explain those for people who don’t know.
Just the very, very simple notion that the court is not the fleeting totality of the nine justices on it, but that the court is bound by prior decisions, and that precedent really matters, and that the court doesn’t disrupt earlier cases simply because they don’t like the result. So when you have a case being pressed, from the left or the right, that says we want you to dismantle what’s come before and we want you to do it because the composition of the court has changed, it creates this sense of deep instability in the law. You don’t know what to rely on. You don’t know what is foundational.
What’s interesting about hearing you talk about this Mississippi case is that there’s so much attention on what’s going to happen in December, but talking to you, I realize in some ways the case might not matter, because even if the justices say, “Listen, this can’t go through, like a 15 week abortion ban, we just we have precedent here, we can’t do that.” Even if that happens, the justices have rubber-stamped what happened in Texas. And so what’s going to happen is the coverage might say, “Oh, look, the justices, they preserved the right to an abortion in this case,” but at the same time the right hand’s doing one thing, the left hand’s doing something else.
That’s right. And Mark Stern and I have been writing, I don’t know for how many years now, that the court doesn’t have to write the sentence “Roe v. Wade is overturned” to end Roe v. Wade.
Another issue with how much trust the public puts in the Supreme Court is that more and more, things at the court are happening on what’s been called the “shadow docket.” Can you explain what that is?
Yes. It is a term that was coined by a law professor, Will Baude.
A former Roberts clerk.
Yeah. The term initially isn’t meant to sound pernicious. It is becoming, I think, cast as something very pernicious. But it is the term to describe the emergency docket. The court has always had an emergency docket. It’s for cases—often death penalty cases—where there’s just not going to be a ton of time for the court to schedule oral arguments, schedule elaborate briefs.
There’s always been a shadow docket, but a couple of things have very dramatically changed in the last couple of years. From 2001 to 2017, there were eight such requests. When Trump takes office in 2017, suddenly the Justice Department was seeking relief 41 times.
Whoa. And it seems like when the DOJ started doing this, it kind of opened a floodgate.
And that’s like the COVID cases. The COVID cases where state restrictions set limits on attendance and the court was saying in one case after another, a whole array of them, that religious institutions and enterprises and plaintiffs could be exempted from that.
So for instance, in April, the court hands down, at 11:30 p.m., Tandan v. Newsom. This is the 5–4 decision issuing an injunction blocking California’s COVID limits on in-home gathering because religious adherents wanted to pray and have Bible study.
Why wouldn’t they just say, “Come back and have a full hearing”? If you want us to intervene here, go the normal route?
It was the court determining that this was an emergency. And in those COVID cases, two things were happening. It wasn’t just that these weren’t briefed and argued. Sometimes you get back-of-the -napkin opinions by the court saying, “OK, hey, this is happening.” You don’t know who has written it. Often there’s no real coherent idea of what the reasoning is. There’s just an order and an outcome.
They double down on that because then they start referencing their other COVID cases. They’re not just slightly changing the religious liberty doctrine, which happens on the shadow docket, but they’re also saying, “Damn it, why aren’t you reading our other three COVID cases?” And they reference them as though those were fully argued and fully explained. And so it’s a weird house of cards, where building on prior unsigned, unexplained orders, they’re saying, “California, you should know better.”
And one of the things that’s worrying, in addition to everything I’ve just said about how we don’t have full briefing, there are no arguments. In some cases, it’s not clear whether there were three votes, four votes, five votes. We don’t know what the voting array is. But if the court is actually changing doctrine on the shadow docket, then it really flies in the face of the one thing the court has, which is the power to show its work. And if the court isn’t showing its work, if it’s not explaining why it’s doing what it’s doing, it looks like an exercise of raw power.
And that is the worry about the shadow docket. There was this monstrous number of cases just this fall alone on the shadow docket, not just S.B. 8, but the “Remain in Mexico” policy was reinstated. Biden’s eviction moratorium was struck down. So you just can’t do huge, consequential things that affect the lives of millions of people and do it at midnight without any clarity of reasoning.
Well, you can apparently. Who has the power to say to the Supreme Court: “You can’t do that anymore”?
That belongs to the public. That’s the Federalist Papers, right? The court is the weakest branch. It has neither the power of the purse nor the sword. If Congress voted tomorrow to take all the toilets out of the building and shut off the lights, Congress could. The court does not have an army.
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