The Supreme Court's historic term begins.

It could be the most consequential term in decades.
Isaac Saul Oct 6, 2021

Today's read ⏰: 12 minutes.

I'm Isaac Saul, and this is Tangle: an independent, ad-free, non-partisan politics newsletter that summarizes the best arguments from across the political spectrum — then my take.

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Quick hits.

  1. Democrats are wrangling over how to shrink their $3.5 trillion reconciliation package. (The showdown)
  2. Foreign tourists won't be allowed to visit Australia until at least 2022, according to Prime Minsiter Scott Morrison. (The rules)
  3. Democrats are considering changes to the filibuster rule in order to raise the debt ceiling limit. (The idea)
  4. The social media app Snapchat added a "run for office" feature that will help young adults launch political campaigns. (The feature)
  5. The CIA admitted to losing "dozens" of informants who have been captured, killed or compromised. (The spooks)

Today's topic.

The Supreme Court. On Monday, the Supreme Court began its fall term, which many experts on the court say could be the most consequential term in decades. After 18 months of remote activity, Justices returned to the bench for in-person oral arguments (with the exception of Brett Kavanaugh, who recently tested positive for Covid-19 and was calling in remotely). While the nine-month term began this week with a rather typical fight over water rights in Mississippi, the court is going to be hearing explosive cases on abortion rights, gun rights and religious rights over the next few months.

Oral arguments in Dobbs v. Jackson Women's Health Organization, in which the state of Mississippi has asked the court to overturn Roe v. Wade, will begin on December 1. In New York State Rifle & Pistol Assn. v. Bruen, the National Rifle Association is fighting New York State's restrictions on people carrying concealed handguns in public. Oral arguments begin November 3. And in two separate cases, Carson v. Makin and Shurtleff v. Boston, Justices will consider battles over free speech rights and tax dollars being used for religious instruction in school.

Not only is the term itself historic, but the timing of the term has created some added intrigue: National polling shows the court's approval rating, which is traditionally steady, has plummeted in the wake of its decision not to strike down the new Texas abortion law. According to Gallup, just 40 percent of Americans approve of the court — one of its lowest scores ever — compared to 49 percent in July.

Criticism of the court has also prompted very rare public remarks from the Justices. Clarence Thomas, Stephen Breyer and Amy Coney Barrett all made public pleas over the last month for Americans not to view the court as an extension of partisan politics. Which, naturally, only served to heighten discourse about how political the court might actually be right now.

The other issue getting a lot of attention is the court's so-called "shadow docket." The shadow docket is an informal court practice used to expedite rulings that the court issues, also referred to as a “non-merits docket” or an “emergency proceeding.” Frequently, these rulings come down with no arguments being heard or written opinions explaining the rulings, as typically accompany court decisions.

The shadow docket was used most recently when the court decided not to strike down the new Texas abortion law. Democrats and Republicans have in the past agreed that the shadow docket needed more transparency, but in a Senate hearing last month Democrats criticized the docket while Republicans claimed it was a normal part of the Supreme Court.

With the blockbuster term up and running and the discourse about the court permeating the national political scene, we're going to take a look at what the left and right are saying, then my take.


What the left is saying.

The left argues that the court is losing its legitimacy with overtly partisan precedent-breaking.

In The Washington Post, Ruth Marcus wrote about the court's "crisis of legitimacy."

"Of course, the justices shouldn’t simply follow the election returns," Marcus said. "They have life tenure (for better or worse; term limits would be preferable) precisely to insulate them from political pressure. But a court whose ideological balance is out of line with that of the country can find itself in dangerous territory, something to keep in mind as the court embarks on a term that already includes major cases that could result in further restrictions on abortion rights and gun regulation and might also sound the death knell for affirmative action in higher education.

"Consider, since 1969, the last time Democratic appointees constituted a majority on the Supreme Court, Republican presidents have named 15 of 19 justices," Marcus wrote. "During that same period, Democrats have won six of 13 presidential elections, and a majority or plurality of the popular vote in two more. The GOP advantage on the bench is partly a matter of luck about when the vacancies arose (another reason for term limits) and partly reflects Republican willingness to play hardball to prevent Democrats from filling Justice Antonin Scalia’s seat in 2016 and to muscle through Barrett to replace Ruth Bader Ginsburg before Donald Trump’s defeat in 2020... This systemic and entrenched disconnect between public opinion and the judicial philosophy of the court’s majority creates a problem when it comes to assuring that the court’s decisions are accepted and followed."

In MSNBC, Jessica Levinson wrote a round-up of all the cases the court is facing, then made some bold predictions.

"Only fools make predictions, so here we go," she wrote. "Ten months from now, when the court’s term ends, Roe and Casey will no longer be the law of the land. They will either be expressly or implicitly eviscerated. States will no longer possess the authority to restrict people’s ability to carry concealed weapons outside the home, or that authority will be severely narrowed. [Sen. Ted] Cruz, and his colleagues, will be able to raise as much money as they want after an election to repay their personal loans to their campaigns.

"There are other consequential cases that the court will consider that could change our understanding of the contours of the First Amendment and the state secrets privilege," she said. "But if the only two cases the court heard all term were the abortion and gun control cases, we can already predict that thanks to at least five people in a country of almost 330 million, our world is about to look a lot different."

In Slate, Dahlia Lithwick and Mark Joseph Stern said Republicans have no idea how to defend the shadow docket.

Last week's Senate hearing “focused on the conservative justices’ use of unsigned, late-night orders to overhaul the laws of the land, often with little or no justification, accompanied by minimal briefing and no oral argument," they wrote. "The rise of the shadow docket to strike down COVID restrictions, reinstate Donald Trump’s Remain in Mexico policy, and end the Biden administration’s eviction moratorium is proof positive that Republicans have won: They seized a sufficient number of Supreme Court seats to drive the law to the right at a faster pace than ever before.

"When the House of Representatives held a hearing on the same topic in February, Republicans hadn’t yet decided to pretend like this problem does not, in fact, exist," they added. "Instead, several GOP members of Congress condemned the court’s secretive practices. Over the last seven months, though, it seems the Republican Party has decided to feign outrage at Democrats’ willingness to question the court’s procedures and to pretend that justice has happened by way of emergency orders since the founding... In reality, the court’s use of the shadow docket to alter the law has exploded since Justices Brett Kavanaugh and Amy Coney Barrett joined."


What the right is saying.

The right argues that attacks on the court now are based solely on its conservative lean, and not on its actions.

Mario Loyola decried liberal complaints of Republican double standards in appointments as a "pre-emptive" attack on the court.

"The progressive narrative here is based on an essential piece of misinformation, albeit one whose falsity is lost on most proponents, including more than a few law professors," Loyola said. "That is the contention that Republicans in the Senate illegitimately blocked Barack Obama’s nominee to fill a vacant seat during the 2016 election but then turned around and confirmed Donald Trump’s nominee four years later. Thus, through what Harry Reid used to call an ‘untoward maneuver’ on Mitch McConnell’s part, the Republicans erected an illegitimate supermajority of conservative justices... The Constitution provides that Supreme Court seats are to be filled by the president, with the advice and consent of the Senate.

"Progressives are understandably worried about the direction that the Supreme Court could take in coming years, with arguably the strongest conservative majority since the election of Franklin D. Roosevelt in 1932," Loyola added. "For well over half a century, the Supreme Court seemed an endless fount of progressive achievement, and some of those decisions could now be overturned. Naturally, progressives have become vehement proponents of stare decisis and now commonly argue that if the Supreme Court overturns any progressive precedents, it is ipso facto acting out of purely political motives and is therefore illegitimate. It’s worth remembering that most progressive judicial victories of the past century were decisions by courts that showed little regard for the precedents binding on them."

In American Greatness, Josh Hammer accused Justice Sonia Sotomayor of being a progressive partisan.

"Speaking at an American Bar Association event about diversity, the loose-lipped jurisprude allegedly said, according to CNN: 'You know, I can’t change Texas’ law, but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.' ... Sotomayor’s 'gaffe' is yet another eye-opening insight into the legal Left’s view of the courts: that of transparently political institutions pliable to political (read: judicial) actors’ sheer force of will," Hammer wrote.

"The remedy, at this increasingly late hour of the American republic, is not for the legal Right to wholly abandon its more traditional, 'formalist' fidelities to constitutional text, structure, and history, but rather to embrace a more holistic, morally imbued and substantive conception) of the relevant text, structure and history," Hammer said. "The time for an avowedly 'neutral' legal positivism has long passed, if it was ever felicitous to begin with. The legal Right should not stoop to the legal Left’s level, but it must get comfortable with a jurisprudence unabashedly rooted in the morality and justice of the American founding and substantively oriented to reclaiming that morality and justice from those who seek to destroy it."

Meanwhile, The Wall Street Journal editorial board defended the shadow docket.

"Why has what is formally known as the 'orders list' become a lightning rod? The short answer is that the Supreme Court has moved in a conservative direction, so Democrats and the legal establishment have ramped up the volume on their criticism," the board said. "The longer answer is that since about 2014 the Court’s emergency orders have become more frequent, despite the Justices’ preference that cases be resolved through the regular briefing and argument process. But the reasons for this have almost nothing to do with the Court’s ideological makeup, and almost everything to do with the increasing polarization in American society.

"The rise of the internet has facilitated the faster resolution of emergency judicial petitions than in the pre-internet era," the board added. "In its summary of Justice Alito’s remarks, Scotusblog noted that 'the internet now allows the justices to receive the parties’ papers immediately, access the full record in the courts below, and communicate with each other anywhere, anytime.' That includes when the Justices are on 'recess' during the summer. The explosion of high-profile nationwide injunctions by lower courts has also forced the Supreme Court’s hand. Such injunctions started to climb in response to President Obama’s 'pen and a phone' governance in his second term, and accelerated as liberal district judges blocked President Trump’s policies."


My take.

The Supreme Court has always been one of my favorite things to read and write about, and there's something in all of this that strikes me as deeply concerning: There is no real mechanism for enforcing the court's power.

Justice Stephen Breyer is famous for telling a story about his dissenting vote in Bush v. Gore, the 5-4 Supreme Court decision that ultimately handed the 2000 presidential race to George W. Bush. Breyer says that while he was in dissent, he was also encouraged by the outcome, because "there were no riots, there were no police trucks in the streets, there were no people throwing stones." Breyer's observation is one that is both illuminating and chilling: The Supreme Court's authority, fundamentally, comes from public trust.

If the public loses its faith in the institution, something that has truly never happened in a wholesale way (as it has with Congress, for example), it could upend the system we rely on as the final arbiter to settle our most contentious disputes. This term, mixed with the current state of U.S. politics, seems to be a prime opportunity for that to happen. And I have no idea where things will go if that becomes reality.

On the question of politicization of the court, I find the framing a bit disingenuous. Of course the Supreme Court is political. Justices are approved by the President and the Senate, whose members are voted for by us, and whose nominees frequently share the ideological tilt of the people who select them. Amy Coney Barrett, for instance, gave her speech defending the court's impartiality in Louisville, Kentucky, at a venue named after Senate Republican leader Mitch McConnell, who happened to be sitting on the stage next to her (and who is directly responsible for her being on the court).

More appropriate is the question of whether the court can act impartially with the justices consistently applying their constitutional standards and schools of thought regardless of whether the outcome is something they may or may not choose in a vacuum. That question raises a lot more ambiguity, and many justices — both present-day and historically — deserve credit for landing in places where their supporters may not have wanted them to because they prioritized following the law’s intent as they saw it.

Still, the biggest process question this court faces now is on the shadow docket, and it seems clear to me that the process needs reform. The docket’s importance and use have skyrocketed, and high-profile decisions with huge significance to the public are handed down in these unsigned emergency orders with little or no explanation. These kinds of rulings are not tenable for maintaining public trust and they shouldn't be happening at the clip they are right now.

Stephen Vladeck, a left-wing law professor who has been an outspoken critic of the court, testified about the docket before Congress. SCOTUSblog, a legitimately independent and evenhanded news source for all things Supreme Court, covered that testimony extensively. He made several compelling points, including that seven emergency writs of injunction have been issued since November of 2020, and the court had only issued four others between that time and Chief Justice John Roberts' 2005 confirmation. Reuters reported that “the number of substantive shadow docket decisions rose dramatically during the Trump administration. In those four years, the government filed shadow docket applications at 20 times the rate of each of the two previous eight-year administrations.” The Wall Street Journal editorial board cannot simply dismiss that discrepancy by attributing it to the advent of the Internet.


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Your questions, answered.

Q: I’d be really interested to hear your take on the post-left movement among zoomers and younger millennials. It seems like economic populism and conservatism is gaining steam with the same faction that supported Bernie’s campaign in 2016. I would say this shift is represented by thinkers like Anna Khachiyan, Alex Kaschuta, Aimee Terese, Malcolm Kyeyune and Angela Nagle to name a few. Does this movement have any staying power or viability?

— KM, Seattle, Washington

Tangle: I could probably write a whole newsletter on this. It's sort of hard to define the post-left, but it's probably easiest to describe based on what they're against: fascism, political correctness, civility, conservatives, centrists and liberals. Carl Beijer has said "they are uniquely free-thinking equal-opportunity offenders who operate outside of ideological / partisan boundaries. But like most self-identified independents, their actual ideological, political, and even cultural commitments map quite clearly onto the usual camps and divisions." I think this is fairly accurate.

Ultimately, no, I don't see a ton of staying power in it. I could be wrong, but there are too many contradictions and fractures — even within the post-left movement — for it to have viability as an influential political caucus. They are so, so, so very online and immersed in the lords of the internet that — to me — they often seem just as disconnected from your average voters as elites are in the two main parties — not just in policy, but also in culture, tone, and vision for the country.

I do think they represent an important trend in America, which is the eroding fear of Marxism or Marxist ideology, as well as ruthless political independence and loathing for mainstream politicians and ideas on each side that inhabit many young voters. They also speak to how inept the modern left is at winning people over with their purity tests, how so many liberals are viewed as insufferable self-righteous virtue-signalers, and how this has fostered a major blowback against political correctness. But more than anything the post-left just strikes me as our generation's angsty, youthful political faction that every generation has — and one whose views moderate and become more predictable as it ages. We'll see, though.


A story that matters.

In an 82-page report on the Democratic party's worsening performance in the Midwest between 2012 and 2020, outcomes were worst in counties that had the steepest losses in manufacturing and union jobs, and then saw declines in health care. The report, set to be released later this month, is one of the latest pieces of evidence that sheds light on how Democrats have lost strength in Midwestern working-class counties where they used to thrive. Comparing Barack Obama’s re-election to President Biden’s election last year, Democratic campaign veteran Richard Martin "notes that Democrats gained about 1.55 million votes in the big cities and suburbs of the region surveyed. In the same period, they lost about 557,000 votes in heavily rural counties." The New York Times has coverage of the report.


Numbers.

  • 62%. The percentage of Americans who approved of the Supreme Court in 2001, the highest rating in the last 20 years.
  • 37%. The percentage of U.S. adults who say the court's ideology is too conservative.
  • 40%. The percentage of U.S. adults who say the court's ideology is about right.
  • 20%. The percentage of U.S. adults who say the court's ideology is too liberal.
  • $76.2 million. The amount of money the National Republican Senatorial Committee has raised so far this year, more than what it raised in all of 2019.


Have a nice day.

The New York City public library is ending all late fees. The largest public library system in the country says it will no longer charge fines for overdue materials, and that library cardholders can have their accounts cleared of fines. It's a bid to help encourage library patrons to spend more time getting resources, and to level the playing field for low-income people scared of racking up fees if they use the library. "For those who can't afford the fines — disproportionately low-income New Yorkers — they become a real barrier to access that we can no longer accept,” New York Public Library President Anthony W. Marx said. “This is a step towards a more equitable society, with more New Yorkers reading and using libraries, and we are proud to make it happen." I know I've got some librarians reading this newsletter... what do you think? NPR has the story.


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Isaac Saul

I'm a politics reporter who grew up in Buck County, PA — one of the most politically divisive counties in America. I'm trying to fix the way we consume political news.

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