My new approach to SCOTUS Decisions: read (and edit) first, then comment

No more hot takes.


I have been blogging for more than a decade. In the early days, I would often post "instant reactions" to decisions. I would start writing a blog post, publish it, and update it as I make my way through the decision. These were "hot takes" before "hot takes" were a thing.

I don't do that anymore. Now, my new approach is to read a decision, in its entirety, before I comment. And, if the case warrants inclusion in the Barnett/Blackman constitutional law supplement, I edit it on the spot. Westlaw makes the full text available for download shortly after the case is issued. I then strip out all the extraneous information, such as headnotes, pagination, and links. Then I shorten the decision to make it more readable. I shorten the fact section. Remove some of the precedents that are not directly relevant. Trim the concurrences and dissents. All of these steps force me to carefully consider what are the most important parts of the case.

Once I have had time to digest an opinion, in its entirety, I can consider writing about it. I admit that this moderation takes me out of the zeitgeist. I have not checked Twitter in nearly five months, and am much happier for it. But I recognize that I miss lots of opportunities to have the first say on a breaking topic. So be it. No more hot takes.

NEXT: Many Republicans quietly breathed a sigh of relief after Bostock was decided

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  1. I think my initial reaction to Gorsuch's opinion was wrong. In context and after reading the whole thing, the concession I thought he made was pretty mild. It's a run-of-the-mill original intend and textualist opinion with a slightly unusual result.

    1. NToJ, could you expand? Last I heard you thought by taking it word-by-word rather than the whole doc, Gorsuch was using a pretty radical version of textualism.

      I skimmed the opinion and read both dissents a bit more carefully, and am quite happy to be spoon fed by you, but if you think it's important I can do a close read.

      1. I did not think his use of textualism was wrong. What I thought was radical was a concession I thought he made about his subjective understanding of the original intent of the 1964 Legislature. I still disagree with the result, but see now (on fuller review) that he paid typical lip service to original intent, and that the scope of his “concession” was narrower than I thought.

        1. I liked the opinion as well. Honestly the vote would have been 7-2 if congress had been more clear. Kavanaugh seemed ready to admit that the LGBTQ community would qualify as a protected class.

  2. "Now, my new approach is to read a decision, in its entirety, before I comment . . . "

    What next? Multiple named, reliable, verifiable sources?
    No links to NYT & WaPo?

  3. Dude. Give it a rest.

  4. I have not studied this exhaustively, but this originalist argument seems reasonable from preliminary review:

    The 'discrimination based on sex' provision was advanced as a poison pill, designed to make a bill as repulsive as possible to "traditional values' voters. The original understanding was that the provision was intended to make the bill so progressive as to dare people to accept it.

    Legislators responded to that provocation by calling the bluff. The original intent involved aggressive flouting of old-timey thinking on bigotry and discrimination.

    An originalist consequently should interpret the statute in line with its origin.

    1. I actually also liked Gorsuch's analysis of that. I wonder if Congress will reconsider poison pills from now on.

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