Introduction
In her revelatory Foreword to this year’s Supreme Court issue of the Harvard Law Review, Professor Karen Tani illuminates how the Supreme Court has been reshaping dominant narratives about who should be deserving of care and concern.1 The Court’s redistribution of attention, as Tani demonstrates, did not begin this year, but represents the culmination of changes that can be traced back to the 1970s.2 In recent cases, the Court’s solicitude has not generally fallen upon people experiencing homelessness or impoverished individuals seeking benefits,3 but instead has fallen upon “family businesses”4 and those otherwise perceived as oppressed by governmental excesses.5 The shift has been accomplished through both rhetorical and institutional means. The Justices have highlighted the plights of certain protagonists in their opinions.6 Likewise, the Court, through control of its docket, has ensured that certain cases simply are not heard and, therefore, do not make it into the pages of the New York Times or onto network TV.7
Tani’s article engages with a tradition of law and literature approaches to the Court that commenced in its modern form in the 1970s and included, in one of its early instantiations, Professor Robert Cover’s 1983 Harvard Law Review Foreword, Nomos and Narrative.8 This classic article, which Tani cites as an influence,9 situates legal doctrine within a larger normative universe comprised of narratives that supply “[e]very prescription . . . with history and destiny, beginning and end, explanation and purpose.”10 According to Cover, “[a] legal tradition is . . . part and parcel of a complex normative world,” which “includes not only a corpus juris, but also a language and a mythos — narratives in which the corpus juris is located by those whose wills act upon it.”11 The relevant narratives do not spring, for Cover, fully formed from the head of one brilliant individual but instead derive from and are sustained by communities of interpretation.12 The narratives to which Cover refers are not the same as those featured in the proliferation of Law’s Stories collections. Those tend to highlight the particular stories that feature in specific cases, as well as the frequent disparities between the Supreme Court’s account of the events and what actually happened.13 Cover’s point is broader, as he gestures toward the entire web of stories that produces a worldview, generating meaning or rationalizations out of a legal system.
In Curation, Narration, Erasure: Power and Possibility at the U.S. Supreme Court, Tani highlights how the Court’s self-representation as an “umpire”14 and its “narrative of ease and obviousness”15 as well as its “[n]arratives of [d]enial”16 have served its institutional interests.17 Even more significant, I argue in Part II, is the fact that some of the Justices seem to be denying that the Court is, in fact, bound up with producing various narratives and that there are alternatives to their versions. On the one hand, in Loper Bright Enterprises v. Raimondo,18 one of the most significant cases of the Term, Justice Gorsuch disparaged the use of “fictions” — with the implicit claim that they are disingenuous.19 On the other hand, several of the Justices have routinely been advancing the assertion that there is a “best interpretation” or “best reading” of statutory provisions — one that the Justices, rather than other branches, can discern.20 While this is a particular normative proposition, it has been referred to as simply fact — and opposed to the legal fictions found elsewhere.
Relatedly, some Justices have claimed to avoid making “policy” by looking to history for constraints on regulation in constitutional areas like the Second Amendment.21 In doing so, they both deny their role in constructing normative narratives and overly constrain the discretion of the political branches, as I demonstrate in Part III. The fiction here is that the choice to constrain the scope of current legislative discretion by resorting to historical analogues represents less of a choice or policy decision than employing the kinds of means-ends analysis that the Court has generally used to assess burdens on rights.
The judge or Justice himself or herself is another figure of concern whom Tani does not explicitly treat, but who is a central part of the normative universe surrounding legal decisionmaking today. From the longstanding practice of writing outraged dissents to Justice Kavanaugh’s public performance of anger at his confirmation hearing, there has been a pronounced emphasis on the righteous rage of the judge — whether at the excesses of a majority perceived to be overstepping its place or, more recently, at being individually maligned or falsely accused.22 In his 1925 essay Law and Literature, one of the first contributions to the field,23 Justice Cardozo “furnishes a typology of judicial styles,”24 contending that these styles are inseparable from substance.25 In Part IV, I discuss the rise and significance of the new style of the aggrieved Justice.
Judicial displays of aggrievedness — both on the page and in person — also raise questions about their audience. Tani perspicaciously identifies three audiences for the 2023 Term’s narratives, including “people who share the conservative Justices’ concerns about the administrative state,” “new entrants to the legal profession” (that is, law students), and “the court of history, which will attach retrospective significance to what this Court has done.”26 The Justices’ anger and other forms of aggrievedness tend to spill from the pages of the Supreme Court Reporter to the pages of the New York Times27 and Wall Street Journal,28 or from the chambers of the Senate to social media and beyond. More than the specific stories that cases tell, the performance of aggrievedness seems designed to reach not just particular audiences but the public more generally. This is crucial because, as Cover emphasizes, “the creative process” of making legal meaning “is collective or social.”29 Narratives about the legitimacy, or lack thereof, of the Supreme Court, in order to have force, must take hold not only among members of the legal profession or the political branches but also among the general public. The combined effect of the performance of aggrievedness can be to reduce institutional critiques of the Supreme Court — and reform proposals — to character attacks against, and responses by, specific Justices. Individual Justices, as well as the Court’s opinions and its docket-related decisions, thus exert rhetorical force in service of maintaining the Court’s status and its supremacy over other branches.
I. The Power-Shifting Fiction of the “Best Interpretation”
In Loper Bright, discussed elsewhere in the Supreme Court issue, the Court abandoned deference to administrative agency interpretations of a statute that was “silent or ambiguous with respect to [a] specific issue” if the agency’s interpretation was “based on a permissible construction of the statute,”30 or so-called Chevron31 deference, derived from the eponymous 1984 case.32 The decision in Loper Bright afforded several of the Justices, including Justice Gorsuch, an opportunity to elaborate upon their understanding of the judicial role. In doing so, the Justices in the majority simultaneously claimed increasing power for the Court (citing Marbury v. Madison33) to “say what the law is,”34 regardless of the view of executive agencies, and disparaged the “invention”35 and “fiction” of the Chevron Court that assumed Congress would want to permit some range of latitude to agencies.36
Etymologically derived from the Latin word for fashioning or forming, fingere, “fiction” historically designated the action of fashioning as well as arbitrary invention, in addition to usages that connoted deceit or dissimulation.37 Some of the early usages involved claims of legal authority, such as “[t]he King hauing made positiue lawes . . . disdaines that a Groome should . . . annull those, to . . . aduance other of his own fiction” or “[w]e have never dreamt that parliaments had any right . . . to force a currency of their own fiction in the place of that which is real.”38 Rather than doing away with fiction in its Loper Bright decision, the Court replaced one fiction with another. If the assumption that Congress would wish the Court to defer to agencies was itself a fiction created by the Court, the new fiction resides in the notion that there will inevitably be a “best interpretation” of a statute discernible by the Court. The Court has not acknowledged that this latter claim is, however, a fiction. It is this circumstance, rather than fictionality itself, that renders the substitution of one fiction for another troubling. Instead of acknowledging the replacement of one invention by another, the Court insists instead that it is moving toward the nonfictional or the real. And in that reality, the Court maintains a monopoly over interpretation.
Writing for the majority in Loper Bright, Chief Justice Roberts rejected a robust version of departmentalism, or even substantial deference to constitutional interpretations by other branches, with citations to Alexander Hamilton’s strong defense of judicial review in The Federalist No. 78 and Marbury.39 As Chief Justice Roberts opined, even at the Founding, “[w]hatever respect an Executive Branch interpretation was due, a judge ‘certainly would not be bound to adopt the construction given by the head of a department.’”40 Further (again citing The Federalist No. 78), “[j]udges have always been expected to apply their ‘judgment’ independent of the political branches when interpreting the laws those branches enact.”41
Referring to the original Chevron case, the Chief Justice described it as “a judicial invention that required judges to disregard their statutory duties.”42 Justice Gorsuch, in a concurrence that also relied heavily on Marbury, further critiqued Chevron as fiction, a hypothetical account of what Congress intended with the Administrative Procedure Act.43 In doing so, Justice Gorsuch denied the validity of the interpretive procedure Chevron prescribed, contending that “in our democracy unelected judges possess no authority to elevate their own fictions over the laws adopted by the Nation’s elected representatives.”44 Yet this proposition raises some complications — must the Court defer to Congress by asserting the Court’s own supreme interpretive power?
Through dismissing Chevron’s interpretive method by associating it with a judicial fiction, Justice Gorsuch seemed to suggest that fiction has no place in the proper act of judging. Yet this was not the view of Justice Douglas, whom Justice Gorsuch relied on heavily in the same concurrence and praised as having “served longer on this Court than any other person in the Nation’s history.”45 In a powerful 1960 dissent from a decision in which the Court failed to vindicate the rights of a man falsely convicted, Justice Douglas opined, “I do not take the dim view of fictions that the opinion of the Court reflects. Fictions are commonplace to lawyers. . . . Some fictions worked grievous injustices . . . . Yet fictions were often expedients to further the end of justice.”46 Doesn’t this mean, though, embracing falsehood? Much ink has been spilled over what counts as a fiction in law, but Professor Simon Stern’s recent and illuminating analysis suggests that such fictions do not need to entail falsehood nor were they historically assumed to do so within the English and other common law systems, including that of the United States.47 Even Justice Scalia identified some fictions as “benign.”48 But in the context of Justice Gorsuch’s concurrence, the identification of a particular reading of the Administrative Procedure Act as a fiction enabled Justice Gorsuch to claim that what sits on the other side is fact.
The way in which this disparagement of fiction in favor of fact plays out in the rest of Justice Gorsuch’s concurrence demonstrates how the rejection of fiction stands side by side with another act of verbal creation — the construction of a new narrative through judicial means.49 Justice Gorsuch wrote separately to explain why, in his view, Loper Bright represented an appropriate application of stare decisis and related doctrines of precedent, despite the fact that the Court rejected Chevron’s interpretive method.50
As he argued, the judge’s job historically, in seventeenth- and eighteenth-century England, “was to find and apply the law,” hence “common law judges did not . . . afford overwhelming weight to any ‘single precedent.’”51 It was precisely this tendency not to “afford overwhelming weight to any ‘single precedent,’”52 however, that allowed a jurist like Sir Edward Coke to assert something like judicial review in Bonham’s Case53 while, as T.F.T. Plucknett showed almost a century ago, interpolating his own commentary into passages supposedly derived from prior cases and otherwise reshaping precedent in a fairly dramatic way.54 Indeed, the selection of precedents itself furnishes a judicially constructed narrative about what the law is, justified through an account of the historical genesis of the contours of legal doctrine.55 Yet, in fact, the choice to follow or not follow particular precedents is not an act of finding a law that is already out there but is instead itself an act of judicial creativity or making — one an etymologically sensitive person might even call fiction. The precedents that particular Justices or opinions choose to cite — and that they choose not to — themselves tell very specific stories.
Justice Gorsuch’s concurrence also implicitly analogized judicial use of precedents to the reconstruction of congressional intent itself. He critiqued the way in which judges select precedents in a manner similar to earlier criticism of the use of legislative history for support; echoing Judge Leventhal’s claim — which Justice Scalia made famous — that using legislative history is like “entering a crowded cocktail party and looking over the heads of the guests for one’s friends,”56 Justice Gorsuch stated that: “It is not for us to pick and choose passages we happen to like and demand total obedience to them in perpetuity. That would turn stare decisis from a doctrine of humility into a tool for judicial opportunism.”57 This statement suggests that the inverse — picking and choosing passages to ignore — is not a similar tool for judicial opportunism and that it does not represent a similar curation of the story. By ignoring the fact that some precedents will be chosen over others — unless all are ignored — Justice Gorsuch’s opinion conceals the judicial decisions that will surround any use of precedent.
The most striking fiction to emerge from Loper Bright as well as many other recent cases of statutory interpretation is that of a “best interpretation” discernible by the Justices — even if they disagree about what it is. In this regard, a commonality has been emerging between recent applications of constitutional and statutory interpretation. In both areas, the Court has been narrowing the scope of coordinate branches’ discretion through insisting on one correct interpretation rather than the availability of a range of interpretations. The result in the context of the administrative state is the elimination of Chevron deference and, in the context of constitutional review of statutes, the increasing abandonment of means-ends scrutiny. Both of these outcomes enhance the power of the judiciary over that of coordinate branches. And it is striking that both were previewed by a speech then-Judge Kavanaugh gave at Notre Dame Law School a few days after Justice Gorsuch’s nomination to the Supreme Court.58
The dominance of rhetoric about a statute’s “best interpretation” or “best reading” is relatively recent at the Supreme Court. Before becoming a Justice, then-Judge Kavanaugh had articulated his views about statutory ambiguity and the “best interpretation” of a statute several times. In his speech at Notre Dame, then-Judge Kavanaugh opined that claims about statutory ambiguity should not trigger the use of most canons of statutory interpretation, including constitutional avoidance, the use of legislative history, and Chevron deference.59 Although he acknowledged in that speech that “[w]e cannot eliminate all ambiguity in statutes,” he nevertheless opined that judges should simply “go with the best reading of the statute.”60 Similarly, in a review of Judge Robert Katzmann’s book Judging Statutes, then-Judge Kavanaugh insisted that there were no “neutral principles” according to which the existence, or lack thereof, of statutory ambiguity could be determined.61 According to then-Judge Kavanaugh, “because it is so difficult to make those clarity versus ambiguity determinations in a coherent, evenhanded way, courts should reduce the number of canons of construction that depend on an initial finding of ambiguity” and should instead “seek the best reading of the statute by interpreting the words of the statute, taking account of the context of the whole statute, and applying the agreed-upon semantic canons.”62
Justice Kavanaugh alone did not introduce the focus on “best reading” or “best interpretation” to the Court’s statutory interpretation cases. Justice Thomas, for example, had previously emphasized that “[t]his Court’s interpretive function requires it to identify and give effect to the best reading of the words in the provision at issue.”63 Yet it is undeniable that attention has turned in this direction within the past decade or two. A search of all Supreme Court opinions for those phrases yields close to two-thirds of the usages dating from 2008 or after and all but two since 1988.64
Insisting on the “best interpretation” in a way that excludes or minimizes considerations of ambiguity, however, simply shifts judicial discretion from one area (determination of whether or not a statute is ambiguous) to another (assessment of the “best reading”). As Judge Katzmann wrote in his response to then-Judge Kavanaugh’s review:
When a statute is ambiguous, barring consideration of legislative history leaves a judge with words that could be interpreted in a variety of ways without contextual guidance. Ignoring such guidance increases the probability that a judge will construe a law at odds with legislative meaning, and potentially more in line with the judge’s own intuitions and policy preferences.65
Whether looking at legislative history or applying some other canon, ignoring ambiguity and focusing on “best reading” renders the judge the ultimate arbiter — even when meaning is ambiguous or otherwise unclear. The result is that the deference that might have been accorded to another branch through canons like Chevron or constitutional avoidance, or to individual liberty through canons like the rule of lenity, vanishes.66 Interpretive claims for a “best reading” hence represent a significant tool in building what Professors Mark Lemley and Kate Shaw have called the “imperial Supreme Court.”67
II. Whose “Policy”?
Just as the fiction of a “best interpretation” discoverable by the Justices consolidates the power to interpret statutes within the judiciary, the Court’s recent approach to the adjudication of rights similarly prioritizes judicial authority over legislative judgments. Through increasingly turning away from a tradition of means-ends analysis of legislative incursions on constitutionally protected rights toward a Court-developed historical test for what kinds of legislation are acceptable, the Court similarly substitutes its own purportedly objective standard for another paradigm it calls “policy.” In this case, too, the Court’s claim of discovering the scope of permissible legislation within history is a kind of fiction that conceals its own construction. The effect of the new approach is to increase the power of the Court while making that increase seem consistent with a minimalist judicial role.
The Court has most explicitly theorized its retreat from means-ends analysis in its Second Amendment jurisprudence. Tani’s Foreword emphasizes some of the ways in which the Court’s Second Amendment decision this past Term, United States v. Rahimi,68 made its method seem obvious and easy to apply in a manner that can distort public discourse around the right to bear arms. As Tani explains:
A narrative of ease and obviousness serves the Court institutionally: This is a fraught area of law, and it will not do for the Court to seem like an inept supervisor of the lower courts, or like an actor that is doing something other than calling “balls and strikes.” But the narrative also has casualties: (1) It impliedly discourages further conversation about a method that is conceptually flawed and challenging to apply, and (2) it forces further underground arguments about the unprecedented ways in which gun violence affects American communities.69
There is a further consequence — increased restrictions on how and for what purposes legislatures can fashion remedies for gun violence due to the test for evaluating infringements on Second Amendment rights that the Court has selected.
In the constitutional context, Professor Keith Whittington has explicitly theorized the connection between what the Court calls ambiguity and deference to other branches. As Professor Lawrence Solum and Whittington have most prominently elaborated, new originalists distinguish between constitutional interpretation and construction.70 For Solum, interpretation involves an account of the “linguistic meaning” of the text, “whereas construction determines legal content or legal effect.”71 When textual meaning is “vague,” “interpretation makes its exit and construction enters the scene.”72 Although Solum distinguishes in a technical sense between ambiguity and vagueness, much of what the Supreme Court has considered ambiguous would count as vague under his definition, according to which a word is vague “if there are cases where the term might or might not apply.”73 Solum later elaborated that cases involving “[i]rreducible ambiguity, vagueness, contradictions, and gaps . . . are underdetermined by the meaning of the text — they are in the construction zone.”74 Solum has — along with Professor Cass Sunstein — even extended his analysis to the Chevron context, explaining that many of the relevant “ambiguit[ies]” in statutory language are simply cases of vagueness that involve construction of the application of the particular term.75 Those include questions like what counts as a “source” of pollution under the Clean Air Act76 or what “harm” includes under the Endangered Species Act.77
For Whittington, this field of “construction” is one that should be ceded to branches other than the judiciary. As he writes in Constitutional Construction: Divided Powers and Constitutional Meaning:
Constitutional meaning can be partially determined by relatively technical and traditional interpretive instruments, such as text and structure, framers’ intent, and precedent. . . . Additional meaning cannot be discovered in the text through more skillful application of legal tools; it must be constructed from the political melding of the document with external interests and principles.78
While the judiciary, Congress, or the Executive could engage in construction, Whittington generally places priority on the political branches’ activity in this sphere.79
The recent move of originalists on the Supreme Court away from the traditional levels of scrutiny undermines the extent to which courts can defer to constitutional construction by other branches and, in particular, grant latitude in construction to new political actors. The Court has undertaken its retreat from the conventional “tiers of scrutiny” or “levels of scrutiny” most prominently in the Second Amendment context through its 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen.80 The related case of Rahimi this Term furnished an opportunity for more of the Justices to express their particular stances on the turn.
Justice Kavanaugh’s 2017 speech at Notre Dame, however, already augured the possibility of a similar move, on the same occasion that he critiqued the use of ambiguity to trigger deployment of canons of interpretation — and his concurrence in Rahimi tracks the same logic. In both contexts, Justice Kavanaugh uses the language of an “exception[]” to rights, claiming that his audience should not “get hung up on the word ‘exception[]’” because “[w]hether you call them exceptions to a right or the contours of a right is irrelevant to [his] point.”81 In his Rahimi concurrence, Justice Kavanaugh elaborated that, by using the term “exceptions,” he intended to “underscore[] that the constitutional baseline is protection of the textually enumerated right.”82 Referring to “exceptions” to rights implies that the scope and application of rights are not conditioned on their relation to the public good, which Professor Jud Campbell and others have recently argued might be the correct view of at least natural rights at the Founding.83 It also calls to mind Carl Schmitt’s famous line: “Sovereign is he who decides on the exception,”84 adopted in legal circles to treat “black” and “grey holes” in administrative law85 and referred to in popular discussions of the presidential immunity decision this Term in Trump v. United States.86 Following Schmitt’s logic, the fact that the Supreme Court — not the political branches — decides on exceptions to rights would render it sovereign.
In Bruen, Justice Thomas, writing for the Court, affirmed a Second Amendment–based challenge to New York State’s requirement that those seeking a license to carry a concealed handgun demonstrate “proper cause.”87 In doing so, he dispensed with the form of means-ends scrutiny that lower courts had used to analyze cases involving the Second Amendment since its revival in District of Columbia v. Heller88 and application to the states in McDonald v. City of Chicago.89 Instead, Justice Thomas asserted:
[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”90
Some have attempted to reconcile this test with originalism,91 while others have questioned whether that adequately describes Bruen’s methodology.92 The most significant move, however, is less Bruen’s departure from originalism than its effect of depriving current legislatures of latitude in how they protect the public good in the face of underdetermined constitutional rights. Faced with the fact that constitutional rights are not absolute, the Court in Bruen created its own criteria of assessment based on historical analogues.93 This displaced the approach dominant since at least the 1950s of delegating this kind of construction to legislatures and other policymakers and allowing courts to review them later under one of the levels of scrutiny ranging from rationality review to strict scrutiny. To the extent that the Court produces a historical record of restrictions on bearing arms and uses that record to determine whether or not present policymakers can enact gun control measures, it arrogates power to itself that it had previously permitted to legislatures.
Explanations of the departure from traditional modes of scrutiny — like Justice Kavanaugh’s in his concurrence in Rahimi — attempt, however, to conceal that choice. In Rahimi, the Court faced the task of addressing the confusion its Bruen decision had sown in the lower courts in the context of a challenge to a ban on the possession of a firearm by individuals subject to a domestic violence restraining order.94 Although a majority of the Court upheld this restriction in an opinion authored by Chief Justice Roberts that appeared to retreat from the most extreme interpretations of Bruen (whose author, Justice Thomas, dissented), several Justices took advantage of this case to separately articulate their views on constitutional interpretation.95 Returning to the question of “exceptions” to rights that he had addressed in his Notre Dame speech, Justice Kavanaugh’s concurrence insisted that “[h]istory, not policy, is the proper guide.”96 Glossing “history,” he included both preratification and postratification history, as well as judicial precedent;97 with “policy,” he referred to “a balancing approach variously known as means-end scrutiny, heightened scrutiny, [and] tiers of scrutiny.”98 What this account neglects to mention is that the “policy” judgment in question when courts use means-ends scrutiny is not that of judges but of legislatures and policymakers — a judge’s task is simply to assess whether or not enacted state or federal laws or executive branch policies are compatible with the scope of the constitutional right at issue through means-ends scrutiny. Under the Bruen approach, it is the Court that gets to decide what policy means are acceptable — albeit through reference to historical statutes — rather than the political branches. This renders the Court instead of Congress or state legislatures the principal engine of constitutional construction.99
In order to undermine the idea of applying means-ends scrutiny, Justice Kavanaugh claimed that “[t]he balancing tests (heightened scrutiny and the like) are a relatively modern judicial innovation in constitutional decisionmaking,” following Professor Richard Fallon in tracing “heightened-scrutiny” tests back to the 1950s and 1960s.100 Even if strict or heightened scrutiny as explicitly named is of relatively recent origin, however, that is not true of means-ends analysis generally. Indeed, the idea of means-ends scrutiny can be found even as early as Chief Justice Marshall’s statement in McCulloch v. Maryland101: “Let the end be legitimate, let it be within the scope of the [C]onstitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the [C]onstitution, are constitutional.”102 Without getting into the intricacies of arguments around substantive due process in the Lochner era, some have also claimed for that period, or even earlier, an origin point for more rigorous scrutiny regarding rights.103 Furthermore, even if the tiers of scrutiny are relatively new, the very conception of rights underpinning the Second Amendment revival arguably is as well. As Professor Victoria Nourse has argued, the nature and conception of constitutional rights themselves were potentially different before the 1950s.104 Whatever may be said about the genealogy of tiers of scrutiny, some deference to legislative decisionmaking has characterized decisions of the Court since the very beginning.
Although Rahimi does not go as far as Bruen and merely requires historical analogues rather than a “historical twin,”105 it still restricts legislatures in important ways different from means-ends scrutiny. In particular, as Chief Justice Roberts explained in his opinion for the Court, “if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations.”106 By implication, laws that regulate for another purpose would fall outside the boundaries of allowable regulation. This suggests that the Court is controlling the relevant legislative ends through assessing their similarity to Founding-era purposes. Such a step seriously limits the ability of legislatures to take on new tasks that might have arisen in the past decade, or even the past century. To return to Chief Justice Marshall, “legitimate” ends under the Constitution would only be those that had been considered before.107
III. The Aggrieved Style
In her Foreword, Tani points out the many ways in which the Court has shaped our distribution of concern through its implicit attitude toward various figures. She observes, for instance, “the decline of Supreme Court cases foregrounding affirmative government responsibility to people in need”108 as well as the focus on “agency challengers with appealing public faces.”109 One figure who is absent from her account, however, is that of the Justice himself or herself. Individual Justices have, this Part contends, themselves become bound up in the distribution of concern through expressions of grievance within the public sphere. Through these expressions, the Justices have intervened more directly with an audience comprised of the general public than their opinions otherwise would. Such interventions serve to bolster the idea that attacks on the way in which the Supreme Court is functioning within our democracy or in relation to the political branches can be reduced simply to personal grievances against the Justices and thereby minimized and dismissed. The force of an appeal to the public consists in how it affects popular narratives about law, which are themselves crucial to any efforts at reform.
One of the earliest forays into law and literature, well preceding the movement of the past fifty years, was Justice Cardozo’s essay Law and Literature, published in 1925.110 Justice Cardozo there argues against those who would claim that judicial style represents a mere ornament or an aspect of rhetoric divorced from the substance of decisionmaking.111 In furnishing a typology of six styles, Justice Cardozo also suggests that these may emerge from and be contingent on particular historical moments. For example, he associates the “magisterial” style, in which “[w]e hear the voice of the law speaking by its consecrated ministers with the calmness and assurance that are born of a sense of mastery and power,”112 predominantly with Chief Justice Marshall.113 Although he calls this style the greatest, it appears no longer plausible in his historical moment: “A changing philosophy of law has tended, none the less, to the use of other methods more conciliatory and modest.”114
While he does not identify dissents with a particular enumerated style, Justice Cardozo does speak about their sometimes distinct rhetorical characteristics. For Justice Cardozo, the dissenter:
has laid aside the role of the hierophant . . . . For the moment, he is the gladiator making a last stand against the lions. The poor man must be forgiven a freedom of expression, tinged at rare moments with a touch of bitterness, which magnanimity as well as caution would reject for one triumphant.115
More recent commentators have discussed the righteous anger that is sometimes part of dissents, particularly those intended to galvanize a movement of resistance behind them.116
While these occasions for the expression of anger in dissent do sometimes correspond with the “bitterness” that Justice Cardozo references, there is a distinct form of personal aggrievedness that has become a more prominent part of some Justices’ demeanor within the past several decades. Rather than remaining in the pages of opinions, this affect has emerged through the Justices’ other appearances or writings and has addressed a public audience, not simply the legal insiders or law students at whom, Tani argues, Supreme Court opinions are largely directed. In doing so, aggrievedness sits in interesting ways with the broad claims about the role of judge as umpire that many of the Justices have made.117
Examples of Justices’ public displays of aggrievedness could include Justice Kavanaugh’s much commented-upon display of anger during his confirmation hearing118 or even Justice Thomas’s earlier response to Anita Hill’s accusations at his own confirmation hearing.119 But the most prominent in the recent past may be Justice Alito’s writings and interviews in the Wall Street Journal.120 In a June 2023 contribution to the newspaper entitled ProPublica Misleads Its Readers, Justice Alito answered a private request from ProPublica for a response to several questions with a public opinion piece, the title of which attacked the outlet.121 Just weeks later, a lengthy interview with him was also published in the Wall Street Journal.122 In that setting, he acknowledged that his actions were unusual in light of tradition but insisted on the need to defend himself:
“I marvel at all the nonsense that has been written about me in the last year” . . . “[T]he traditional idea about how judges and justices should behave is they should be mute” [and] others, especially “the organized bar” [should] defend them. “But that’s just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself.”123
Given Justice Alito’s prominence and the significance of opinions that he has authored to particular movements, including the decision in Dobbs v. Jackson Women’s Health Organization124 overturning the right to abortion under the Fourteenth Amendment,125 one wonders what “nobody” defending him means.
Individual self-defense quickly shifts, in the interview, into Justice Alito’s defense of the Court against change.126 Indeed, the effect of the rhetoric of aggrievedness may be to eviscerate a systemic critique of its potency by making it seem like an attack on individual character. During the interview, Justice Alito opines, “‘I know this is a controversial view, but I’m willing to say it’ . . . . ‘No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.’”127
The new style of the aggrieved judge doubtless partakes of our political moment, in which President Trump appeals directly to his followers on X about perceived injustices.128 In this respect, at least, some of the Justices follow another branch. By focusing on the personal, however, this style also minimizes the significance of the prospect of structural change, one fleetingly raised by the Supreme Court Commission’s Report toward the beginning of President Biden’s term and his proposal for Supreme Court term limits and a binding code of conduct toward the end.129
Conclusion
Tani’s Foreword asks us to look at the stories that the Supreme Court picks for us to care about and those that they do not and the narrative that the Court constructs about its own authority. What unifies its stories of a “best interpretation” of statutes and a historical alternative to creating “policy” in constitutional rights adjudication with the emergence of the new figure of the aggrieved Justice is that these narratives and characters work together to enhance the power of the Court over state and federal legislatures and the administrative state.
Maintaining the existence of a “best reading” of text discernible by judges takes discretion away from agency or other executive branch interpreters. Moving away from means-ends scrutiny tethers legislatures to consistency with historical rationales for lawmaking rather than allowing them to reason anew in the present. And the persona of the aggrieved Justice suggests that any congressional efforts to reign in the Court are simply personal attacks rather than systemic reforms. Once we fully see the artifice involved in these narratives, perhaps we can begin to undo their effects.
* Carl and Sheila Spaeth Professor of Law, Stanford Law School; JD/PhD (English). Thanks to Mark Lemley, Jane Schacter, Matthew Smith, and the editors of the Harvard Law Review for valuable feedback and suggestions.