Here’s An Idea: Read The Decision Before You Rage Or Strut

Supreme Court decisions sadly invite the deepest divisions in American civic life today. A simple tonic to this endless divide would be for Americans to actually read the decisions they protest and fight about so much.

Do you consider yourself to be a warrior in the pro-life movement? Is religious liberty and the increasing domain of secularization a central concern to you? Do you consider the rise of the “administrative state” to be a form of soft tyranny that is incompatible with representative democracy?

Or, do you feel like the Second Amendment is either outdated or under endless assault by Blue America?

No matter which issue concerns you the most, chances are we Americans are debating it in some fashion. Thus, here is a suggestion that will significantly improve the state of American civic discourse. I know it’s abundantly optimistic and maybe a bit naive, but here it is: pick at least one Supreme Court decision from this year’s consequential term and take an hour to read it.

I’m serious.

Don’t treat these decisions and the entire judicial branch as arenas for gladiatorial legal throw-downs. In reality, as Woodrow Wilson once observed, the Supreme Court is “a constitutional convention in continuous session.” Every year, nine extraordinary and unique legal minds have an extended conversation amongst themselves about the meaning of the Constitution on a variety of issues.

This year it was abortion and gun rights and the free exercise of religion. Next year it will be affirmative action and election law. And unlike the other two branches, the judicial branch does something utterly extraordinary: it bestows a civic gift to the American people, a gift we rarely unwrap. The Supreme Court justices go to great lengths to explain why they do what they do and why they think the way they think. As Americans, we have the opportunity to drink from the jurisprudential trough of their insights.

But instead, we often engage in shallow knee-jerk political cheerleading.

We can do better. The decisions are actually quite easy to read. Yes, there is some legalistic lingo to navigate (supra, stare decisis, writ of certiorari), endless citations to previous decisions, and there are a variety of opinions being offered at the same time (the majority opinion, the dissent, concurring opinions, etc.). But on balance, the average literate American can easily comprehend the arguments being made in the decisions.

Justices Are Actually Good Writers 

Most of the justices on the Supreme Court are exceptional writers. While few will ever capture the verve and vim of Antonin Scalia, whose opinions were laced with both high-minded legal reasoning and snappy one-liners (he once assailed a majority opinion as “pure applesauce”), the justices aim for clarity because they aren’t simply writing to modern-day America.

They are writing to posterity and the likes of the Harvard Law Class of 2055. They know their arguments will be studied, critiqued, and either celebrated or condemned by future students and scholars long after they are gone. They would much rather be regarded as a John Marshall Harlan, whose sole dissenting voice in Plessy v. Ferguson was used to overturn the decision decades later in Brown, than a Roger Taney, who penned the worst decision in American history, Dred Scott.    

You Might Learn Something 

The Dobbs v. Jackson Women’s Health Organization decision is a perfect illustration of why Americans should read Supreme Court opinions.

Many Americans dislike the Roe and Casey decisions because they dislike abortion. But it would be wise to understand why so many consider Roe a grievous constitutional mistake. It is also important to learn how the majority behaved akin to a quasi-legislature in its 1973 written opinion, and why even the likes of Ruth Bader Ginsburg thought it was a poorly reasoned and executed decision. In the Dobbs decision, Justice Alito explains all of this with utter clarity.Moreover, a reader would learn about the evolution of the Court’s thinking on reproductive rights and how the 1992 Casey decision jettisoned earlier claims of privacy in favor of a broad argument about substantive due process and the “undue burden” test.

Most Americans do not know how close the Court came to overturning Roe thirty years ago in Casey, when Justice Anthony Kennedy flipped his vote, purportedly causing Scalia to drive to Kennedy’s house to argue with him about the matter. Alito lays out in the Dobbs decision why arguments grounded in substantive due process do not apply to abortion. In his concurrence, Clarence Thomas lays waste to the entire doctrine of “substantive due process” itself.

Finally,  people who are down on John Roberts these days might become more sympathetic to his judicial posture if they took the time to read his dissent. Judicial conservatism has more branches than simple originalism or textualism. It also includes an appreciation for social stability, a resistance to activism, a preference for judicial incrementalism, and an acknowledgement that even incorrectly-decided decisions should

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