The Supreme Court can no longer explain itself

The justices don’t speak a common language, even with each other.

The legal profession is much like a priesthood; both lawyers and theologians interpret a central text, be it the Bible, the Quran, the Gita, or the Constitution. We bury ourselves in canonical commentaries on that text. And we are all supplicants to beings much more powerful than ourselves.

Which explains why I’ve spent the past few years contemplating what happens when God goes mad.

Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.

The Supreme Court wrapped up its most recent term during a bizarrely haphazard celebration of the United States’ 250th birthday. And it has struggled to articulate a coherent vision of the Constitution no less than President Donald Trump has struggled to keep the National Mall’s reflecting pool clear during that celebration.

The Court isn’t just the most powerful institution in the United States — the only body capable of overriding both Congress and the president. It is supposed to be the caretaker of something sacred and eternal. As Justice Antonin Scalia once wrote, the whole purpose of a written constitution is “to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable.”

That is, the Constitution fixes in place certain rights and governmental structures that are not supposed to change just because someone loses an election or because a few seats on the Supreme Court change hands. The right to free speech, the rule establishing that people born in the US are Americans, and the idea that all Americans, including the president, are subject to the same laws are abiding principles that should survive a change in administration or in the Court’s makeup.

But this Court does not simply overrule foundational precedents so often it is difficult to keep track; its work is increasingly illegible to people — even lawyers — who do not share the Republican justices’ values. I am grateful that I no longer practice law, because one of a lawyer’s primary duties is to advise clients on whether something they plan to do in the future is legal. And this Court’s interpretations of the law are often too opaque and unpredictable to allow lawyers to advise clients on what the law will be tomorrow.

One of the most prestigious writing assignments in the American legal academy is the Harvard Law Review’s annual Foreword. Last year, this assignment went to Richard Re, an insightful right-leaning scholar on Harvard’s own faculty, and Re spent much of his Foreword discussing why “America’s two competing legal cultures” have diverged.

Re writes that, for many years, the Court was dominated by “swing” justices like Lewis Powell, Sandra Day O’Connor, and Anthony Kennedy who were “Republican appointees selected under conditions that facilitated the identification of moderates.” These justices were all moderate conservatives who weren’t particularly sympathetic to liberal causes, but they also tended to shy away from decisions that would alienate half of the country. As Re writes, Powell, O’Connor, and Kennedy had a knack for avoiding “results that would divide the nation and threaten the Court’s legitimacy or popularity.”

Just as importantly, these swing justices forced “judges, advocates, commentators, and students” to all seek “ways of appealing to those median jurists.”

Because a moderate justice “held the key to major victories,” lawyers and judges across the political spectrum had to ask themselves “what would Anthony Kennedy do?” and not “what outcome would I prefer?” In Re’s words, this “shared mission effectively forced the two opposed ideological groups to adopt a common language and mode of reasoning, at least when arguing their cases.”

Today, by contrast, the Court is dominated by a coalition made up of two camps: very conservative Republicans and fiendishly conservative Republicans. Republican legal elites spend their time crafting legal theories that sound fantastical or even farcical to lawyers who do not belong to their tribe. And when the Supreme Court embraces these theories, they are often impenetrable even to other federal judges.

This legal divide is, of course, symptomatic of a greater rot. Democrats and Republicans are as polarized in Congress and in the broader electorate as they are in the Supreme Court. Consumers divide over whether to buy the liberal brand of blue jeans, coffee, or beer or the nearly identical MAGA version. America is so divided it can’t even celebrate its 250th birthday. As I write these words, the nearly empty Great American State Fair is eclipsed by our head of state’s hyperfixation on an algae bloom and his broader desire to turn our semiquincentennial into a celebration of himself.

But the country does pay a significant price for its bifurcated legal priesthood, above and beyond the broader costs political polarization imposes on us all. The decisions handed down by one faction of this priesthood are increasingly incomprehensible to people outside that faction.

As a result, lawyers cannot reliably advise their clients when the law is constantly shifting and incomprehensible to many of them, and lawmakers cannot know in advance whether the bill they spend years shepherding into law will be struck down by the courts. And ordinary Americans, who may rely on their attorneys for counsel and who relied on lawmakers’ promises that they could actually legislate, can easily lose faith in a system that even lawyers cannot understand.

Meanwhile, the biggest loser may be the Court itself. When the legal priesthood’s nine prelates are unable to explain their decisions in ways lawyers can understand — when the high priests refuse to tell us why they decided cases the way they did or seem to abandon their longstanding beliefs once those beliefs inconvenience their political party — those decisions become fragile. A few shifts in the Court’s makeup could bring even more disruption, as the new guard casts aside decisions they find repulsive or that they simply cannot comprehend.

In the worst case scenario for this Court, Democratic lawmakers who believe that the justices have weaponized the law against them could retaliate in ways that the Court cannot defend itself against.

The Alitoification of Brett Kavanaugh

One apparent consequence of a polarized legal priesthood is that justices who previously displayed hints of moderation are being pulled deeper into their respective camps — a shift that is embodied by Justice Brett Kavanaugh.

In the early years, when Kavanaugh and Justice Amy Coney Barrett were still newly installed on the Court, legal........

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