Why I Stopped Obsessing About the Supreme Court
Updated: Oct 15, 2021
I’ve spent most of my career writing about the Supreme Court.
We make sense of nonsense, and nonsense of sense. We obsess. We psychoanalyze. We model. We look back. We project forward. We explain. We confound. We explain how others confound. That’s what Constitutional Law Professors do.
I’ve worried about the Supreme Court’s shadow docket. I’ve speculated about what’s hidden in the shadows. Like the list of Yom Kippur infractions, I’ve wondered who abused, committed perjury, dissented, flagrantly mischaracterized, thwarted justice, was cantankerous, lamented past rulings; was obstinate, was unpersuasive, quit prematurely, stultified, vexed, withheld vital precedent, was xenophobic, offered dubious analysis, zealously advocated for the wrong cause.
I’ve obsessed over whether the Roberts Court is the Kavanaugh Court. Whether Kavanaugh should be on the Court. About Thomas being silent. About Thomas asking questions. About who gets to ask questions in what order. About Thomas whispering to Breyer. About Breyer friending O’Connor. About Scalia and Ginsburg at the Opera. About Scalia and Ginsburg as an Opera. About Kagan and Scalia going hunting. About hunting violating the Kashrut. About the Merrick Garland rule. About the Merrick Garland Justice Department. About Trump getting three hits, one in overtime, with Carter never getting at bat.
I’ve pontificated on originalism, original meaning, the meaning of original meaning, history, historiography, who’s sitting, and standing. Oy, lots and lots on standing.
It’s not so much that thirty years in I’ve grown tired of it. Rather, it’s that the past few years made me realize the project is small-bore. And small. And a bore.
The question is less whether the Supreme Court is least dangerous than least damning. Or least damnable.
Don’t get me wrong. I’m as concerned as the next professor that the Supreme Court is cutting back on abortion rights, has ditched restrictions on campaign finance, has given the greenlight to RatF**king our Democracy, has blunted the battle against COVID, and has zealously elevated religious liberties and gun rights. I get it. Believe me.
But let’s face it. Our democracy is under severe threat. It might just collapse, and there is nothing—nothing—the Supreme Court can do to save it. And truthfully, it probably shouldn’t. What would it say of our democracy if it could? What would it say about us?
There’s just too much at stake to continue obsessing over the machinations of three women, six men; seven whites, one African American, one Latina; three Democrats, six Republicans; two Jews, seven Catholics; four Harvards, four Yales. Go Notre Dame! This isn’t America. It’s nothing like America. And it’s America, not the Supreme Court, that’s falling apart. The Court might be the one institution that’s united. United the wrong way, but still, I suppose that’s something.
As for me I’m turning my attention elsewhere. At least for now. We need big ideas if our democracy is to survive. I’m sure of that. I’m working on those ideas. And frankly, in that story, which is about how to fix our electoral system, the Supreme Court might not deserve much more than some footnotes.
I welcome your thoughts, although truthfully, I hope you’ll welcome mine. Stay tuned.
This post is dedicated to my father, Herbert B. Stearns, whose Yahrtzheit (the Jewish anniversary of life, marked by the date of passing), begins this evening and ends tomorrow. I’m not sure he’d agree everything written here, but I like to think he'd have enjoyed reading it.