Current Affairs

A Convenient Way To Promote Happiness

How The Supreme Court Pretends To Be Reasonable…

…when it’s so obviously ideological. Examining the case of “compelled speech.”

A lot of people know full well that the Supreme Court is “political.” They notice that the conservative justices tend to construe the law in a way that furthers conservative policy preferences, and liberal justices do the same for their own preferences. If I tell you that this week, there were decisions that upheld Donald Trump’s “Muslim ban,” that limited California’s ability to require crisis pregnancy centers to give information about abortion services, and that reduced the power of public sector unions, and I tell you these decisions were 5-4, my guess is that you will know instantly who the five are and who the four are. Even if you don’t know all the justices’ names, you’ll know that the 5 were the ones appointed by Republican presidents and the 4 were the ones appointed by Democrats. We don’t have to know anything about the law in order to know the result, even though the cases are supposedly about the law.

Ordinary people know full well that when politically divisive issues come before the Court, its decisions are frequently little more than a tally of how many Rs and Ds there are. And yet: This is not at all how the Justices themselves, and a lot of the legal community, and anyone who happens to agree with the Court’s decisions, understand what is going on. They think the cases are extremely complex matters of statutory and Constitutional interpretation. If you read any one of the cases I’ve mentioned, you’ll see that they contain long (looooooong) arguments about what precedents mean, which of them apply, how to square statutory language with Constitutional language, etc. Samuel Alito’s opinion in Janus v. AFSCME does not say “As a Republican I do not care for unions, therefore I am ruling in the way that will seriously harm public sector unions.” He says that he is examining the reasoning of a 1977 case called Abood v. Detroit Board of Education, finding that Abood’s pragmatic justification for overriding rights against compelled speech was insufficient to survive the strict scrutiny required in First Amendment cases. People who defend the Janus v. AFSCME decision, who will largely be conservatives or those who distrust unions, will say that Alito’s reasoning was correct, and will reject any suggestion that the five conservatives were just construing the law in a way that would hurt unions. Why aren’t you dealing with his Actual Arguments? Why are you assuming, unprovably, that he is operating in bad faith?  

So I want to carefully show why a lot of Supreme Court jurisprudence is a sham, and how the justices smuggle their values and preferences into their reasoning. This is no great secret among legal scholars, and the “legal realist” and “critical legal studies” traditions have developed precisely in order to examine and explain how it happens. But two decisions from this week concerning the concept of “compelled speech” afford a useful real-world primer on what it means to say that decisions are “political.”

I.

First, let’s look at National Institute of Family and Life Advocates v. Becerra. In that case, decided on Monday, a “crisis pregnancy center” objected to a California regulation requiring that reproductive health clinics post a notice informing visitors that the state offers low-cost access to family planning:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].

In an opinion by Clarence Thomas, the five conservatives struck down the requirement. They spoke once again of the state “compelling individuals to speak a particular message,” making them speak from a “government-drafted script” to endorse a message they oppose. Anthony Kennedy felt the issue was so important that he wrote a separate concurrence, calling the regulation “a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech.”

It’s odd that the court would get so righteous about a requirement to post a one-paragraph notice when there is all kinds of “compelled speech” required of organizations, such as wage and hour notices, restaurant letter grades, and “Employees Must Wash Hands Before Returning To Work” signs. Thomas says these are different because the information in them is “non-controversial,” though it still seems pretty coercive, so how important you think the government’s interest in requiring each notice depends on your underlying sense of what matters, a.k.a. your political views. But even leaving aside the fact that organizations are constantly being forced to say things, there’s actually another example of speech that is both compelled and controversial in the abortion context. Several dozen states have passed “informed consent” laws which require doctors to give women seeking abortions certain “information,” which is written from a pro-life perspective. The compelled speech in question often refers to a fetus as an “unborn child,” and in Kansas, it says that “abortion terminates the life of a whole, separate, unique, living human being.” Some of the information is false, or strongly contested by many medical professionals, and much of it conflicts with the deeply-held convictions of abortion providers.

That should outrage the five conservatives, right? After all, Anthony Kennedy sees compelled speech as the road to serfdom. And here’s Thomas explaining why the fact that somebody has chosen to enter a profession does not in itself justify telling them what they must say as part of their job:

When the government polices the content of professional speech, it can fail to “‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’” Professionals might have a host of goodfaith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana…“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting), and the people lose when the government is the one deciding which ideas should prevail.

Now, the Supreme Court had previously held that it was fine to require abortion doctors to tell patients whatever nonsense the state decided was medically necessary. So what does Thomas say when it comes time to distinguish that case from this? Let’s see:

The joint opinion in Casey rejected a free-speech challenge to this informed-consent requirement. It described the Pennsylvania law as “a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion,” which “for constitutional purposes, [was] no different from a requirement that a doctor give certain specific information about any medical procedure.” Ibid. The joint opinion explained that the law regulated speech only “as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Indeed, the requirement that a doctor obtain informed consent to perform an operation is “firmly entrenched in American tort law. The licensed notice at issue here is not an informed consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities—such as general practice clinics, see §123471(a)—are not required to provide the licensed notice. The licensed notice regulates speech as speech.  

“Compulsion is a basic infringement on the liberty of speech! Doctors must have the right to use their judgment rather than having the state tell them what to say!”

“But what about this very prominent instance in which the state literally hands doctors a pamphlet about abortion and tells them what to say?”

“Oh, well, that’s just informed consent. Informed consent is part of tort law. It doesn’t regulate ‘speech as speech.’” A distinction? Yes. A distinction made for sound legal reasons rather than political ones? No.

II.

We can look at a more detailed example of how the idea of “compelled speech” is applied in an unprincipled manner by the right. The day after the NIFLA decision, the Court decided another case: Janus v. AFSCME, which held that public sector employees cannot be required, as a condition of employment, to pay an “agency fee” to a labor union to cover the costs of collective bargaining. The conservative majority held that these fees violated employees’ First Amendment rights, because they “forced” employees to subsidize “speech” they disagree with. First, let me quote a supporter of the decision, Michigan’s Solicitor General, explaining it in its most positive light:

The Supreme Court’s decision today in Janus v. AFSCME is a win for the free-speech rights of government employees. Now citizens who choose to serve the public can no longer be compelled to pay fees to a private expressive organization that exists to influence government policy on matters of public importance. Mark Janus, for example, works as a child support specialist for Illinois, and he was concerned about Illinois’ fiscal crises. Despite his views on government spending and the proper size of government, he was compelled to pay about $535 per year to a private entity, the American Federation of State, County, and Municipal Employees, to support the union’s collective-bargaining efforts, efforts intended to directly affect the state budget and the provision of governmental services. As a result of the court’s decision today, employees like Janus will now have more choices — more liberty — concerning what speech they support (and what they do with that $535)…they won’t be forced by the government to subsidize the speech of a private organization with which they disagree.

Another supporter of the decision says that “with Janus v. AFSCME, the Supreme Court takes a positive step forward in ensuring that all Americans receive the full complement of individual protections that the First Amendment was enacted to provide.” It’s worth taking this seriously, because if it’s true, we’ve all benefited from the decision that some consider “the fatal blow that unions have long feared.” All Americans finally have their First Amendment rights! How is this conservative? Maybe, just maybe, it’s the liberals who are political and side with unions, but the conservatives who are principled interpreters of the Constitution, which just so happens to require the result that hurts public sector unions. Let’s see!

Alito’s opinion is a very passionate defense of the individual’s right to avoid being “compelled” by the government to speak. He says that “forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns” and pays rousing tribute to the the importance of human liberty. Here is in an extended passage (I’m including the case citations because they’re an important part of the rhetorical technique that creates the appearance of  judicial credibility):

We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” …  The right to eschew association for expressive purposes is likewise protected. Roberts v. United States Jaycees, 468 U. S. 609, 623 (1984) (“Freedom of association . . . plainly presupposes a freedom not to associate”); see Pacific Gas & Elec., supra, at 12 (“[F]orced associations that burden protected speech are impermissible”). … Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this…. Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least as threatening. … Free speech serves many ends. It is essential to our democratic form of government, see, e.g., Garrison v. Louisiana, 379 U. S. 64, 74–75 (1964), and it furthers the search for truth, see, e.g., Thornhill v. Alabama, 310 U. S. 88, 95 (1940). Whenever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends. When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning… As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” … Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed.

After making the case that compelled speech presents a very serious First Amendment issue, Alito examines the previous decision in Abood. In Abood, the Court made a distinction: Employees could be required to pay an “agency fee” to unions for the benefits the employees receive in collective bargaining, but they couldn’t be required to subsidize the political speech of unions. Alito says that this distinction makes little sense, because even the “agency fee” subsidizes activities the employee may have a strong values-based disagreement with. Furthermore, the justifications Abood gave for requiring the fee (preserving “labor peace” and preventing “free riders”) are insufficient to overcome the First Amendment’s free speech protections.

But let’s look more closely at Alito’s disquisition on freedom. He compares agency fees for bargaining to a situation in which “all residents” were required to “sign a document expressing support for a particular set of positions,” being “coerced” and “forced” into “betraying their convictions,” which would be “sinful and tyrannical.” And he doesn’t draw distinctions between this kind of “coercion” and deducting an agency fee from public employees’ salaries. Of course, any non-lawyer can instantly see that there’s a huge distinction: Agency fees are a condition of employment. Employment comes with lots of conditions that, if they were required of “all residents,” would seem coercive. It would be coercive to force people to show up at the Illinois Department of Motor Vehicles at 9am every weekday. If this is a condition of working at the Illinois Department of Motor Vehicles, however, the requirement seems somewhat less like “coercion.” If every job requirement is “force,” then employers, both public and private, are constantly forcing their employees to engage in “compelled speech” every time an employer issues an instruction to an employee to say something (e.g., “Welcome to Best Buy,” or “Please turn in your homework”) indistinguishable from a situation in which government agents knock on everybody’s door in the middle of the night and demand they praise the Affordable Care Act at gunpoint.

The First Amendment itself, of course, only applies to acts by the state. But if we accept Alito’s idea that “the choice to take a job” doesn’t reduce the degree to which a job requirement is “coercive,” then there’s no difference in the level of force being used by private employers and public employers. Now, as a leftist, I’m inclined to accept this! I do think that something “required as a condition of employment” can be coercive. But even I don’t think that “my employer making me say hello to the customers” is the same as “the government passing a law requiring that I say hello to people.” Alito’s opinion goes on to distinguish between the kind of speech an employee is being “made” to “utter” in the case of a required agency fee and the kind of speech that they are regularly required to utter as part of their job, saying that “of course, if the speech in question is part of an employee’s official duties, the employer may insist that the employee deliver any lawful message.” But is that kind of speech also “coerced” and “forced” out of employees, the same way it would be if a law were passed demanding “all residents” say it? We can certainly distinguish between two kinds of speech: speech as part of your job and speech that isn’t really part of your job, and say that you get First Amendment protection for the latter but not for the former. But if “force” is the issue, why aren’t they both equally coercive? Alito’s suggestion that union contracts are tyranny means that the level of “force” apparently does not vary based on whether the government is “putting something in an employment agreement” or “demanding it at gunpoint.” And the presence of “force” is not defined by the particular thing one is being forced to do, but the process being used to get one to do it. So we are all being constantly forced, from the writers I commission to produce speech for Current Affairs to the junior prosecutors required to enforce laws they don’t agree with. (Also, as some actual principled libertarians have pointed out, what does that make taxes, a.k.a. mandatory subsidization of speech you disagree with? Hell, we paid for Bush’s Mission Accomplished banner!)

Conservative notions of “force” and “freedom” are often applied highly selectively. “Right to work” laws, for example, are based on the same premise as Alito’s decision: that an employee should not be “forced” to join a union if she doesn’t want to. But think about what right-to-work laws actually do: They prohibit employers and unions from agreeing that union membership must be required as a condition of employment. That’s a little strange, because it’s actually restricting the free market: An employer might want to offer a contract requiring union membership, and a potential employee might be willing to take that contract, but such a contract is prohibited, on the grounds that this would contract would be “forcing” an employee to join a union. But what about all the other things an employment contract forces employees to do? It’s a contract! Its entire purpose is to bind the two parties to a set of promises. Naturally, the right’s conception of “force through contract” applies only in the case where that contract is requiring union membership. It never seems to apply when the contract is requiring you to turn over your social media passwords, or have your bathroom breaks timed, or agree that you can be fired for saying a mean word to your boss. In those instances, the contract is “freely chosen” by the employee and nothing the employer does within its terms constitutes force. Why? Because the employee could leave. Yet in the case of requiring union dues, both for public and private employers, suddenly employment terms become force.  (And remember the conservative arguments that the Affordable Care Act “forced” people to buy health insurance, in a way that no other tax incentive apparently does.)

Let’s go back to agency fees. Remember the facts of the case: The Court says you can’t require public employees to pay agency fees to unions, because they might not agree with what the unions choose to say, and so the employees are being “compelled to speak” in a “sinful and tyrannical” way. There’s one strange thing about this “liberty infringement,” which is that almost the exact same situation could exist, with only a minor difference in paperwork, and there wouldn’t be any liberty infringement at all. You could get around it with an accounting trick. Let’s say that instead of putting “union dues” as a line-item deduction on people’s paychecks, you just cut their pay. Cutting people’s pay is not coercion. (Well, we on the left might think it is.) Then, the employer chooses to give the union an amount equivalent to what the employees would have paid. Instead of the employees paying 2% of $100, they’re paying 0% of $98. And they can’t complain that their “money is being used to subsidize,” because money you were never promised isn’t your money. (Again, unless you accept Marxism, and believe that all appropriation of surplus value is theft.) As things stand, you never actually get the money that goes to your “agency fee”; it’s automatically deducted from your paycheck. Instead of the employer pretending to pay you an extra 2% that immediately gets transferred to the union, it could be transferred to the union as an expense of the employer, and the employee can’t claim that they’re being “forced” to subsidize anything. (Alito suggests there is also a problem with the union claiming to “speak for” employees in negotiating positions. But in the absence of the subsidy, that would be irrelevant, since a boss speaks for employees too, and in the “coerced speech” framework there’s no reason an employee should have more of a right to select their particular bargaining representative than to select their boss.) I am not suggesting this as a practicable response to Janus, because the fiction that the “employees” are paying the union rather than the employer is valuable, but it shows that this notion of coercion is absurd. It means that the exact same process can be classified as “unjust tyrannical abridgment of speech” or “an employer’s prerogative” based on whether you list the union’s funding as a “deducted fee” or an employer’s expense.

III.

So let’s get the right’s position on “compelled speech” clear:

A state can’t force a pregnancy center to post a notice listing available reproductive health services. A state can force an abortion doctor to say things she believes are medically unsound and against her deepest convictions. If a job requires you to pat your head and tickle your tummy all day for $7.25 an hour (less if you’re disabled), while being shouted at by a sadistic boss who actively desires to make your life miserable, you are not being coerced. If the job requires union membership, you are being coerced. If a public employer chooses to cut your pay to free up some extra funding for the military-industrial complex, that’s fiscal responsibility. If a public employer chooses, by agreement with a union, to deduct a fee for union membership, that’s an outrageous infringement upon your right of speech. If you have to pay taxes to pay Stephen Miller’s salary and materially support a host of policies you abhor, that’s the most basic right of government. If people who take particular jobs are required to pay fees to support an organization that fights for their rights, that’s such an infringement on First Amendment rights that it can be compared to the government requiring “all residents” to pay to subsidize speech they don’t care for, which is somehow not what taxes are.

I am not arguing that it is impossible to draw distinctions between these different cases that could make all of this fit together “consistently.” That’s what the Supreme Court dedicates dozens of pages of its opinions to doing: explaining why this case isn’t exactly like that one, and so that one doesn’t apply. For example, Clarence Thomas has to quote the other court decisions allowing compelled speech, such as disclosure requirements, informed consent laws, and safety notices. He does draw distinctions. He says that “informed consent” is different, and disclosure is different. And of course, they are different, though only in the sense that everything is slightly different from every other thing. (“You applied the law differently to Bob than you did to George. How is that consistent?” “Well, Bob and George are different people.”) And in her Janus dissent, Elena Kagan argued that that, unlike cases in which a precedent is truly egregious and should be overruled, in this case the principle of stare decisis should be applied. Rarely do court decisions actually directly conflict with one another, since the bulk of the exercise consists of trying to find ways to show that your desired outcome fits with all of the court’s other decisions (actually, that it is compelled by those other decisions, and you yourself are at the helpless mercy of the Rule of Law).

The point is, though, that these distinctions are a choice, made based on the judge’s moral and political values. Why are the conservatives totally unbothered by “compelled speech” in one case but absolutely outraged by it in the other? In Thomas’ opinion, he says it’s different because in one case, doctors are talking to patients, but in the other, the clinic is being required to talk to everyone who enters the clinic. But that’s just a difference he’s found in the facts, it’s not a reason why one of the cases seems like literal tyranny while the other seems innocuous. The factual differences are not great enough to justify the reaction, which is coming precisely because conservatives have a different set of values. (By the way, this absolutely goes the other way: I have no doubt that liberal judges upset by the coercive nature of “informed consent” laws would justify the California crisis pregnancy requirement, and would tell you that the difference really matters for reasons that having nothing to do with personal beliefs about which of those things is good.)

What happens, then, is an elaborate shell game: When the precedents support your favored outcome, you are all about stare decisis, the principle that the court should defer to settled law and hesitate to overrule itself. When the precedent directly contradicts your position, as in Janus, you emphasize natural rights, like freedom from coercion. When natural rights cut the other way, as with equality and freedom in the travel ban case, then you emphasize the critical importance of deferring to statutes. There is a standard “grab bag” of justifications for decisions, and all you have to do to write a Supreme Court opinion is freely grab from the bag (preferably for about 50 pages). Again, this observation about how judicial reasoning works has been made by legal scholars for about 100 years now. Yet the justices writing the decisions, and those who like the decisions, continue to pretend it isn’t the case.

Here’s another way in which values are smuggled in, which we might call “sophistry over time.” It goes something like this: First, a court decision (Abood) says that while forcing workers to subsidize political speech is coercive, they can indeed be forced to pay for nonpolitical speech. Then another decision (Janus) says that this distinction doesn’t make sense, that the supposedly nonpolitical speech is still pretty political, that Abood’s justifications for requiring it fail, and that coercion is coercion. If we get caught up in “law logic,” we can end up having a fight over whether the government’s interests in drawing the political/nonpolitical distinction are “compelling.” And we can forget how many premises we’ve already tacitly accepted, namely that having a buck deducted from your paycheck is the same as being forced to say words on penalty of imprisonment. Law often evolves through a series of syllogisms that occur gradually, and look insane when they’re put together, but because they come in separate cases, can seem reasonable one by one. Consider this (purely hypothetical) logic:

  1. There should be no difference between the way laws are applied to individuals versus organizations of multiple individuals.
  2. The government cannot prevent individuals from exercising their right to free speech.
  3. Preventing people from spending money to speak is preventing them from exercising their right to free speech. If the government prohibited someone from buying flyers to speak, it would be the same as if it prohibited them from speaking.
  4. Corporations are organizations of multiple individuals.
  5. Any restriction on how corporations spend money to influence the political process is a freedom-destroying tyrannical violation of the First Amendment.

From voting rights to prosecutorial accountability to class actions, there are numerous examples of how premises that sound plausible in isolation can lead to disastrous and absurd results when taken as a whole.

In fact, bad Supreme Court decisions can actually look very compelling. You don’t notice the shell game being played. A persuasive argument will be mounted about precedent, then a persuasive argument will be mounted about principle, but what you don’t see is that the precedent was being emphasized when the principle was weak, and the principle was being argued when the precedent was weak. There’s a wonderful old saying about how to be a lawyer: “When the law is on your side, pound the law. When the facts are on your side, pound the facts. And when neither is on your side, pound the table.” It’s absolutely true, and once you’ve trained yourself to spot it, you can see it constantly. (Insisting that stare decisis should be honored even if the precedent makes no sense is generally the equivalent of “pounding the table.”) You can find a justification for everything somewhere, even if existing precedent goes completely against you. Abood explicitly allowed agency fees, so what did the conservatives do? They just overruled it, because it was “poorly reasoned.” On the other hand, when sodomy laws were overruled, it was Antonin Scalia and Clarence Thomas who were screaming in dissent about the critical importance of deferring to old decisions, and the liberals invoking the overriding importance of liberty.

Importantly, you can’t decide these cases without value judgments, because there aren’t value-neutral “correct answers” in cases where judges have to subjectively choose which of several factors to give more weight. Whether you think Abood’s justifications for requiring agency fees are compelling depends a lot on how important you think unions are versus how much you get angry when union contracts cause individual workers to do things they wish they didn’t have to do. As my colleagues Brianna Rennix and Oren Nimni point out in their excellent article about judges, law inescapably involves the application of personal beliefs about the good.

As I say, I think it’s only judges, lawyers, and op-ed columnists who may be in denial about this. I’ve essentially just given you an elaborate explanation of what you already knew already: Conservative justices are conservative, and liberal justices are liberal. You don’t have to have even read Roe v. Wade to understand that it’s under threat from the conservative justices, because the battle over Roe is about differing beliefs about abortion. Interestingly, Ruth Bader Ginsburg herself denies that: Asked whether Roe could be overturned, she said “I think it’s not a likely scenario… The court is highly precedent-bound… [P]recedent is important in this court.” That’s certainly true, insofar as justices usually endeavor mightily to produce explanations for why their decisions fit with precedent. But if they have a strong political reason, they’ll just overrule the precedent, as Alito did with Abood. There’s no reason why someone who thinks abortion is literally a genocide of babies would feel any loyalty to a 1973 decision that even Ginsburg thought was poorly-reasoned.

The Supreme Court’s judgments are obviously going to reflect the politics of its members. They have to, since a question like “How legitimate is the state’s interest in preserving public unions?” is a political question. This means, though, that Democratic politicians need to treat the fight over Supreme Court nominations as political, and try to fill the court with people who have progressive values. (Assuming we think our own values are good, which we do. Conservatives think their values are good, and act accordingly.) Eric Levitz of New York magazine sensibly points out that this means not doing what Obama did when he nominated Merrick Garland to fill Antonin Scalia’s seat. You do not, as Levitz says, “nominate a middle-aged, white male centrist to the Supreme Court” and “then argue for his confirmation on grounds of procedural norms, rather than ideological goals.” I mean, you can if you’re trying to convince the dozen or so people in the world who still insist Supreme Court justices should be selected on the basis of “merit” divorced from “values.” But facing reality honestly means that admitting that the war over the Supreme Court is a war over whose values will tip the scales in legal decisions.

There are ways in which the Supreme Court isn’t a sham. When cases are over purely procedural matters, unaffected by values, or there would really be no plausible way to get the outcome you want without saying “I am a Republican, so I am ruling against the workers” and you have to reluctantly resign yourself to an outcome your disfavor, the justices may genuinely be making decisions on the grounds they say they are. But generally (with some exceptions, like John Roberts in the Affordable Care Act case), in cases with strong political content, the Court’s opinions are exactly what everyone suspects them to be: reflections of the justices’ underlying political worldviews, all the dozens of citations and footnotes just an extended effort to convince themselves that they’re doing something other than what they’re actually doing. As Anthony Kennedy retires (I’m sorry, but good riddance), we should treat the Supreme Court as what it is: a body that often deals with mundane and trivial bureaucratic disputes, but that is also an important way in which ideological preferences are imposed using, well, force.

More In: Law

Cover of latest issue of print magazine

Announcing Our Newest Issue

Featuring

Spreading Sweetness and Light! Current Affairs takes on hellfire, why teens love socialism, the magic of Motown, and the legacy of Huey Long. Cover art by Aleksandra Waliszewska.

The Latest From Current Affairs