My Collected Supreme Court Commentary for the New Term

and some thoughts about judicial fearlessness

Tomorrow is the first Monday in October, which marks the start of the newest term at the Supreme Court. In the past few weeks, I've had various pieces of commentary on the Court that I thought I'd collect here.

First, and perhaps best in my book, there are the first two episodes of the newest season of Divided Argument, my "unscheduled, unpredictable Supreme Court podcast" with Dan Epps.

The first episode, Maoist Takeover, was recorded at William & Mary Law School as part of their Scalia-Ginsburg Collegiality Speaker Series, and focuses on how to engage with people across profound disagreement, as well as on the Supreme Court's shadow-docket decisions in Yeshiva University v YU Pride Alliance.

The second episode, Horse Sausage, just dropped today and it previews the extraterritoriality/dormant commerce clause case about California's pork regulations, National Pork Producers Council v. Ross.

But I've also found myself getting lured into some more general Supreme Court commentary. I appeared on this virtual panel at Harvard Law School on "Law and Politics in the Roberts Court" with Amanda Hollis-Brudsky, Adam Liptak, Leah Litman, and Janai Nelson, where I took the unpopular position that the Court tries to pursue a vision of law that is quite independent of politics, even though the Justices were put there by politics.

I also had some related and more wide-ranging discussion of the Court (and the state of our institutions more generally) with Bill Kristol on his show, Conversations with Kristol.

And finally, I gave an interview to Ruth Marcus of the Washington Post which resulted in this passage in her opinion essay on the coming Supreme Court term:

"Fearless." That's the adjective that University of Chicago law professor William Baude applies to this court, and in his view, that's not a bad thing. "The court's not sitting out the hard cases now," he said. "Change happens. New Justices were put in the court by politics, and that's how the court's supposed to work. Everybody understands that putting new justices on the court who are different from the old justices has consequences. That's never been something the court could or should try to immunize itself from."

This passage has gotten a lot of attention on Twitter, and to my mind the most interesting response is this thread from Richard Re, beginning:

Two kinds of judicial fearlessness: (1) doing what's right even when it's contrary to "elite" opinion; (2) doing what's right even when it will disappoint or frustrate your allies, or the people who put you on the bench. Folks seem to focus opportunistically on one or the other.

— Richard M. Re (@RichardMRe) October 2, 2022

and ending:

What is this obviously unplanned thread about? Maybe it's about how judges are praised or criticized in a partisan age, including by one another. A pat rhetorical structure is always available, stunting real thinking or engagement. It avoids facing EITHER the merits OR politics.

— Richard M. Re (@RichardMRe) October 2, 2022

Relatedly, there are Rick Pildes's and Orin Kerr's earlier posts about the concept of judicial courage. And also Scott Alexander's "Against Bravery Debates."

One upshot of all of these is that I think it's probably not helpful to try to characterize one Court or set of Justices as particularly more fearless than an another. Just as with the discussions of law and politics more generally, a lot of these characterizations may in the end reduce more fundamentally to legal disagreements, about what our law is and what it demands of our judges.

Anyway, that's enough of that kind of commentary for now. For some slightly more extended arguments about the Court's role, you can read my recent-ish articles on The Real Enemies of Democracy or on Supreme Court reform (Reflections of a Supreme Court Commissioner).