Supreme Court Foreword 138 Harv. L. Rev. 1

Curation, Narration, Erasure: Power and Possibility at the U.S. Supreme Court

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Introduction

“Dead, dead, dead.”1 This quote might have referred to any number of apparent casualties of the 2023 Supreme Court Term — from the Court’s decades-old approach to reviewing agency action (“Chevron deference”),2 to federal prosecutors’ chances of holding former President Donald J. Trump accountable for alleged interference with the 2020 presidential election,3 to the billionaire Sackler family’s bold attempt to use a corporate bankruptcy settlement to finalize their liability for the opioid crisis.4

The quote in fact referred to a case that Court-watchers and the media have already largely forgotten, Acheson Hotels, LLC v. Laufer.5 At oral argument on the morning of October 4, 2023, Justice Kagan pronounced Laufer dead on arrival.6 In a rare display of consensus, her most conservative colleagues appeared to agree. Article III of the U.S. Constitution constrains the Court to adjudicating only live “Cases” and “Controversies,”7 and this one appeared “dead as a doornail,” in Justice Alito’s words;8 “finished,” in Justice Thomas’s.9

Seven months earlier, when the Court agreed to hear Laufer, the case presumably looked alive — and useful.10 The Court’s review of this dispute promised to resolve disagreement among lower courts over whether a disabled “tester” plaintiff like Deborah Laufer had standing to enforce the Americans with Disabilities Act of 199011 (ADA) against a hotel that she admittedly had no intention of visiting in person.12 By the time of oral argument, however, the facts had changed in crucial ways.13 Laufer, who “ha[d] sued hundreds of [other] hotels” over alleged noncompliance with the ADA, learned that a district court had suspended her lawyer from legal practice, following findings of unethical behavior in prior lawsuits that Laufer had brought.14 Following this news, Laufer “voluntarily dismissed her . . . suit[]” against Acheson Hotels, as well as all pending suits against other hotels, and “filed a suggestion of mootness” with the Supreme Court.15 At oral argument, her appellate counsel went so far as to assure the Court that Laufer would never file an ADA lawsuit again.16 Ultimately, the Court agreed to treat the case as moot.17 Seven Justices joined a majority opinion warning against efforts to “evade our review” and supplementing the order of dismissal with an order of vacatur, effectively erasing the First Circuit’s standing determination.18 No longer suitable for making law for the nation, Laufer would make no law at all.

Dead and disappeared, Laufer might be the least important decision of the 2023 Term — a Term that, in the words of one major newspaper, “[r]emade America” itself.19 But from another perspective — that of this Foreword — Laufer is an ideal starting point for reflection.

Consider, first, how Laufer reached the Court. The Court chose it from among thousands of petitions for review, via an opaque but high-stakes process.20 Many cases end here, with no explanation.21 Laufer was instead lifted up. When the dispute later disintegrated, some Justices sounded frustrated. “[S]ignificant resources have already been invested in this case,” Justice Barrett noted during oral argument.22 “[W]e may have to come up with another case,” Chief Justice Roberts remarked, referencing the need to find a different vehicle for answering the legal question Laufer had presented.23 In other words, the concern was not only about resources already spent, but also about having to spend resources again, in pursuit of the same end.24

These comments are both mundane and profound. They are mundane because of course the Justices ought to be concerned about answering important legal questions of national significance. So too should they care about institutional resources. These comments are profound in revealing the constructedness of the Court’s “merits docket,” the assemblage of the sixty-or-so cases that the Court chooses to consider every term,25 along with the much smaller number of cases that it must hear (where jurisdiction is mandatory).26 The vast discretionary portion of the docket is decidedly not an objective representation of the legal questions that matter most to the American people.27 If it were, it is not obvious that “tester” plaintiffs would be on the agenda (despite the important role they can play in enforcing antidiscrimination laws28). Nor, despite the Court’s self-presentation, does the merits docket consist of legal issues that incontrovertibly must be decided now by the nation’s apex court.29 Laufer became part of the 2023 Term because it had the potential to resolve a “circuit split” within the appellate courts.30 But so did other cases that the Court declined to take up during the same time frame.31 In reality, the Court’s merits docket is a highly curated collection of controversies — not unlike an archive of historical sources or an exhibit at a museum, but with a different function and much more formal power.

“Curation” occurs most obviously via case selection, but also at other decision points — some of which became unusually salient during the 2023 Term. In addition to deciding which cases warrant review, the Court decides when a case is most suitable for review (that is, at what stage of the litigation and on what sort of underlying record), which legal question(s) to consider, how to sequence arguments, and when to issue decisions.32 Curation also occurs further upstream, via signals in prior decisions and oral arguments about what sort of litigants should petition for review and which questions they should raise.33 (The same types of signals warn other litigants to steer clear of the Court if they can.34) To be sure, it would be hard to dispute the rightful place of some items on the Court’s agenda each term, but this should not distract us from the contestable choices the Court makes when curating the vast majority of its docket.

These exercises of curatorial discretion matter in at least two ways. The first and most obvious pertains to lawmaking: In adjudicating particular cases, the Court will make the law of the land, with immediate and significant consequences for the law’s subjects.35 Whatever one thinks about the merits of the 2022 decision Dobbs v. Jackson Women’s Health Organization,36 for example, the Court chose to take that case and chose to decide it as it did.37 (Court-watchers may recall that the court below had adhered, if grudgingly, to Supreme Court precedent, leaving no error to correct under then-governing law.38) Dobbs’s revocation of a constitutionally protected zone of reproductive autonomy has already had a profound impact.39

Similarly consequential, and flowing from other discretionary judgments, was the Court’s decision in Trump v. United States,40 which followed from a federal grand jury’s indictment of former President Trump on charges relating to his refusal to accept his defeat in the 2020 presidential election.41 After the Court of Appeals for the D.C. Circuit rejected Trump’s arguments regarding presidential immunity,42 Trump urged the Supreme Court to weigh in.43 But the Court was not required to do so. It could have denied certiorari and allowed the D.C. Circuit’s decision to stand.44 It could have issued a summary affirmance.45 Instead, the Court accepted review and, at the very end of the Term, issued a decision that insulates wide swaths of presidential conduct from criminal prosecution.46 During the Court’s consideration of this case, Trump was actively campaigning for a second term in office and also deeply embroiled in litigation (“fighting 91 felony counts, across four different jurisdictions”).47 At the time of this writing, the legal and political consequences of Trump v. United States continue to unfold.

Acts of docket discretion also produce a second set of consequences — even more central to this Foreword — and these are narratives.48 Legal decisions provide opportunities to tell particular stories — about what happened and why; about what is changeable and what is fixed; about who “we” are as a people and who is not our concern.49 Laufer, a standing case, was an opportunity to tell a story about injury, with all of that concept’s legal and rhetorical power.50 Like other recent standing cases, it asked what counts as an injury, how we know when injury has occurred or is likely to occur, and which injuries have legal remedies.51 In fact, Laufer offered up multiple tales of injury: On one side were small business owners who felt targeted — even “violated” — by plaintiffs like Laufer;52 on the other side, disabled Americans whose encounters with inaccessible hotels left them feeling frustrated, degraded, and invisible.53 In treating Laufer as moot, the Court largely restrained itself from weaving any of these stories into an official narrative — other than to cast Laufer herself as something of a villain.54 But the space that Laufer occupied on the Court’s highly selective docket reminds us of the Court’s power to do this crucial storytelling work.

This now “dead” case also primes us to ask questions about who, if not Laufer, benefitted from the Court’s narrative-making power during the 2023 Term — and why. Out of a cast of characters that prominently featured masculine strivers55 (hardworking fishermen,56 risk-taking investment fund managers,57 stormers of the U.S. Capitol58), stories emerged about overzealous federal prosecutors and administrators. Sympathy also seemed to flow toward misunderstood politicians,59 encumbered Christian believers,60 and beleaguered local governments,61 even if they did not get everything from the Court that they came for. From the perspective of the conservative legal movement, members of these groups have suffered under generations of liberal and progressive policies, as well as via judge-made doctrines that have tilted against them. In the 2023 Term, as in other recent Terms, the Court opened its doors to these concerns and gave them a respectful hearing.62

“Claims to victimhood are claims to power,” communications scholar Lilie Chouliaraki has noted63 — making it noteworthy that the narratives in principal opinions simultaneously declined to give prominent roles to several groups that media outlets had treated sympathetically. These included pregnant emergency room patients,64 people affected by gun violence,65 people experiencing homelessness,66 and those endangered at the U.S. Capitol on January 6, 2021.67 Principal opinions acknowledged individual hardships,68 as well as challenging social realities,69 but refused to confer the status of victimhood on these groups, or give them agency in describing their harms.70 Still other groups and experiences had no place at all on the Court’s docket and therefore less presumptive access to national conversations about what justice requires.71 Victims of police misconduct, for example, were largely absent,72 despite persistent calls for the Court to revisit a judge-made doctrine (qualified immunity) that has often prevented them from holding law enforcement officers accountable.73

In the background, meanwhile — and sometimes right on the surface — were narratives about the Court itself: whom it serves, how it relates to other governmental institutions, and how Americans ought to understand its role. Amidst what many commentators have called a legitimacy crisis,74 these narratives illuminate how members of the Court’s conservative supermajority would like to be understood — both by today’s public and by the court of history.75

These different facets of Supreme Court decisional power — the power to decide what to decide and the power to craft and disseminate narratives — matter in different ways, but are united in at least one respect. They each produce a particular distribution of concern: an investment of time, resources, possibility, and understanding that can translate into distributions of other valuables, including power, legitimacy, opportunity, wealth, and protection.76 Each distribution also translates into further concern, both from the Court and from the institutions that take direction and meaning from what the Court does, including lower courts, the media, law schools, and academia.

Drawing on insights from history — a discipline that has long grappled with the non-neutrality of the questions we seek to answer, the knowledge we produce, and the judgments we make — this Foreword is a call to see and interrogate the Court’s distribution of concern, including concern for its own stature and authority. It is also a call to recognize the choices, recent and more distant, undergirding this distribution. Such an approach could yield insights into many eras, but the current Court has features that make this focus especially apt. These include the Court’s shrinking merits docket77 (raising the stakes of each case) and a decisional and rhetorical style that determinedly resists the kind of analysis I am asking for, by appearing to welcome limits on the Court’s discretion and by eschewing talk of consequences.78

To explore this theme, this Foreword proceeds in three main Parts, each of which loosely analogizes the work of the Court to the work of professional historians. I do so not because of the Court’s own embrace of history (although I touch on this topic). Rather, I take this approach because of how deeply historians have thought about (1) the possibility of “neutrality” — this Court’s shibboleth — and (2) the power that inheres in every decision we make about how to find and convey truth.

Part I — Curation — critically examines docket construction in the 2023 Term. Dipping into the petitions for certiorari, this Part also offers glimpses of a docket that might have been, to underscore that non-wealthy people, navigating predatory economic circumstances, were available for the Court’s consideration, even if they did not feature prominently on the docket. Pragmatically, this demographic may have been better off evading the Court’s gaze, but the Court’s apparent disinterest in their cases nonetheless raises important questions. As Professor Erin Delaney has observed, one of the ways that the Court has “construct[ed] its legitimacy [is] through an opaque method of avoiding substantive rulings” that it does not want to make.79 As the Court curated one set of legal questions to decide, was it evading others?

Part II — Narration — argues that we should care not only about which cases the Court chose to decide, but also about the narratives that members of the majority chose to foreground. These are as worthy of analysis as the Court’s legal holdings (which other contributions to this issue discuss in depth). Particularly prominent this Term were censorious narratives about the administrative state, which appear aimed at naturalizing significant changes to administrative law. Also prominent were narratives about the Court itself — narratives that seek to convince the public of the Court’s modesty, neutrality, and farsightedness.

Part III — Erasure — addresses a phenomenon that is well known to historians but less discussed by Court-watchers: the disappearance from the record of particular people and experiences, leaving a “silence” in an authoritative body of knowledge. This Part connects the themes of the 2023 Term to the disappearance over time of cases involving government support of “the most vulnerable,” to borrow a phrase from one of the Term’s sharpest dissents.80 This disappearance has eased the way for decisions that empower the least vulnerable. These same decisions have then channeled scholars’ concern, in ways that merit acknowledgment and resistance.

Part IV concludes, with reflections on the kinds of questions that can change narratives and unlock different futures.

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* J.D./Ph.D. (History); Seaman Family University Professor, University of Pennsylvania. Sarah Barringer Gordon, Melissa Murray, William Novak, and John Fabian Witt were early and vital interlocutors. They also engaged deeply with early drafts and offered invaluable comments, as did Amna Akbar, Ashraf Ahmed, Rachel Bayefsky, Josh Chafetz, Erin Delaney, Andrew Hammond, Jasmine Harris, Jill Hasday, Scott Heerman, Serena Mayeri, Shaun Ossei-Owusu, David Pozen, Teemu Ruskola, Kate Shaw, and Noah Zatz. Other colleagues were generous thought partners at formative stages: Zohra Ahmed, Jeanine Alvarez, Corinne Blalock, Hardeep Dhillon, Ryan Doerfler, Helyeh Doutaghi, William Ewald, Brittany Farr, Sarah Gronningsater, Christen Hammock Jones, Angela Harris, Sean Hill, Amy Kapczynski, Tejas Narechania, K-Sue Park, K. Sabeel Rahman, Noah Rosenblum, Justin Simard, Marbre Stahly-Butts, and Lisa Washington. Rachel Biggio, James Callison, Kate Constant, Sara Edelman, Santoro Giuggio, Sophia Heisman-Gibbons, Allison Kunstler, Jacob Ross, Sam Rudovsky, Caroline Shoaibi, Jared Turner, and, most especially, Ethan Swift provided excellent research assistance. The student editors of the Harvard Law Review made this Foreword better in every way.

Footnotes

  1. ^ Transcript of Oral Argument at 19, Acheson Hotels, LLC v. Laufer, 144 S. Ct. 18 (2023) (No. 22-429) (statement of Kagan, J.), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-429_4315.pdf [https://perma.cc/P478-QVF2].

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  2. ^ See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2268, 2273 (2024).

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  3. ^ See Trump v. United States, 144 S. Ct. 2312, 2356 (2024) (Sotomayor, J., dissenting).

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  4. ^ See Harrington v. Purdue Pharma L.P., 144 S. Ct. 2071, 2078–79, 2086 (2024).

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  5. ^ 144 S. Ct. 18 (2023). See, e.g., Jeannie Suk Gersen, The Message of the Supreme Court’s Wild Ride of a Term, New Yorker (July 12, 2024), https://www.newyorker.com/news/daily-comment/the-message-of-the-supreme-courts-wild-ride-of-a-term [https://perma.cc/Y2AT-A2QF] (a Court-watcher not mentioning Laufer in a summary of the 2023 Term); Major Cases Decided by the US Supreme Court This Term, Reuters (July 1, 2024, 1:26 PM), https://www.reuters.com/world/us/major-cases-before-us-supreme-court-this-term-2024-03-29 [https://perma.cc/P98Q-P4AS] (a media outlet not mentioning Laufer in a summary of the 2023 Term).

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  6. ^ Transcript of Oral Argument, supra note 1, at 18–19 (statement of Kagan, J.).

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  7. ^ U.S. Const. art. III, § 2.

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  8. ^ Transcript of Oral Argument, supra note 1, at 16 (statement of Alito, J.).

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  9. ^ Id. at 4 (statement of Thomas, J.).

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  10. ^ See Acheson Hotels, LLC v. Laufer, 143 S. Ct. 1053 (2023) (mem.) (granting certiorari).

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  11. ^ Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101–12213 and 47 U.S.C. § 225).

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  12. ^ Acheson Hotels, LLC v. Laufer, 144 S. Ct. 18, 20–21 (2023); id. at 23 (Thomas, J., concurring in the judgment).

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  13. ^ See id. at 23 (Thomas, J., concurring in the judgment).

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  14. ^ Id. at 20–21 (majority opinion).

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  15. ^ Id.

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  16. ^ See Transcript of Oral Argument, supra note 1, at 70 (“Ms. Laufer . . . will not be bringing any more ADA suits . . . .”). This was likely an attempt to persuade the Justices that Laufer was acting in good faith, not trying to preempt an unfavorable ruling.

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  17. ^ See Laufer, 144 S. Ct. at 22 (finding the case moot and noting that, although the Court could nonetheless adjudicate the standing question, it would not do so). Justice Thomas disagreed with the Court’s decision not to reach the standing issue. See id. at 23, 27 (Thomas, J., concurring in the judgment).

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  18. ^ See id. at 22 (majority opinion). The vacatur relied on United States v. Munsingwear, Inc., 340 U.S. 36 (1950), which dealt with how appellate courts should approach situations where a case becomes moot while pending review. Id. at 39–40. This vacatur also aligned with language in the “suggestion of mootness” Laufer filed with the Court. See Suggestion of Mootness at 1, Laufer, 144 S. Ct. 18 (No. 22-429) (“Ms. Laufer recognizes that, because it was her voluntary decision to dismiss her claim that mooted the case, the favorable opinion she obtained in the court of appeals should be vacated.”). In a separate writing, however, Justice Jackson faulted the Court for failing to evaluate the equities of whether to vacate the judgment below. Laufer, 144 S. Ct. at 29, 31 (Jackson, J., concurring in the judgment); see also Chapman v. Doe, 143 S. Ct. 857, 857 (2023) (Jackson, J., dissenting) (“I am concerned that contemporary practice related to so-called ‘Munsingwear vacaturs’ has drifted away from the doctrine’s foundational moorings.”). Justice Jackson is not alone in noting the significance of this seemingly technical doctrine. See Steve Vladeck, 20. “Munsingwear Vacaturs,” One First (Mar. 27, 2023), https://www.stevevladeck.com/p/20-munsingwear-vacaturs [https://perma.cc/V8D5-XBJH] (noting the Court’s increased use of Munsingwear vacaturs in recent years); Pattie Millett, Practice Pointer: Mootness and Munsingwear Vacatur, SCOTUSblog (June 10, 2008, 1:30 PM), https://www.scotusblog.com/2008/06/practice-pointer-mootness-and-munsingwear-vacatur [https://perma.cc/L5VP-M9G6] (explaining the Munsingwear vacatur “rule” and documenting the Supreme Court’s sparing issuance of such vacatur orders as of 2008); Lisa A. Tucker & Michael Risch, Canceling Appellate Precedent, 76 Fla. L. Rev. 175, 175–76 (2024) (documenting the Court’s increased use of Munsingwear vacaturs since 2017 and suggesting a correlation with “the ideological directionality of the federal appeals court opinion” that is potentially subject to vacatur, id. at 176).

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  19. ^ Adam Liptak, In a Volatile Term, A Fractured Supreme Court Remade America, N.Y. Times (July 2, 2024), https://www.nytimes.com/2024/07/02/us/politics/supreme-court-term-decisions.html [https://perma.cc/4E2C-D2HY].

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  20. ^ See Margaret Meriwether Cordray & Richard Cordray, The Philosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection, 82 Wash. U. L.Q. 389, 390 (2004) (explaining the “secrecy” and “importance” of the Court’s certiorari process). During the 2022 Term, Chief Justice Roberts reported 4,159 cases filed with the Supreme Court. John G. Roberts, 2023 Year-End Report on the Federal Judiciary 8 (2023), https://www.supremecourt.gov/publicinfo/year-end/2023year-endreport.pdf [https://perma.cc/YK4U-QLQ3].

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  21. ^ Cordray & Cordray, supra note 20, at 402.

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  22. ^ Transcript of Oral Argument, supra note 1, at 15 (statement of Barrett, J.).

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  23. ^ Id. at 45 (statement of Roberts, C.J.); cf. H.W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court 220–21 (1991) (noting that from the Justices’ perspective, cases have a “fungibility” to them, meaning that if the Court did not end up deciding a particular case, the Justices could imagine a relevantly similar case arising again in the future, id. at 221).

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  24. ^ See also Jasmine E. Harris, Karen M. Tani & Shira Wakschlag, The Disability Docket, 72 Am. U. L. Rev. 1709, 1765–66 (2023) (noting a similar frustration when the petitioners in a 2015 disability rights case deviated from the argument in their certiorari petition); cf. Aaron L. Nielson & Paul Stancil, Gaming Certiorari, 170 U. Pa. L. Rev. 1129, 1136 (2022) (describing “every grant of certiorari” as “costly to the Justices”).

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  25. ^ See generally Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic xi (2023) (describing the Court’s substantial discretion over the cases it chooses to hear on the merits). Of great importance, as well, is the larger set of cases that the Court handles on an “emergency” basis (more swiftly, less publicly). See generally id. (emphasizing the importance of the Court’s “emergency,” or “shadow,” docket); William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 5 (2015) (“[U]nderstanding the Court requires us to understand its non-merits work — its shadow docket.”).

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  26. ^ See, e.g., Alexander v. S.C. State Conf. of the NAACP, 144 S. Ct. 1221, 1238 (2024). Cases that the Court must hear are (1) those for which it has original jurisdiction; and (2) those for which Congress has made appeal a matter of right. Perry, supra note 23, at 24–25, 24 n.8. Today, neither category produces many cases. Id. at 25.

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  27. ^ See, e.g., Frederick Schauer, The Supreme Court, 2005 Term — Foreword: The Court’s Agenda — And the Nation’s, 120 Harv. L. Rev. 4, 7–9 (2006) (pushing back on the notion of “government by judiciary,” id. at 7, by observing that, in the 2005 Term, the Court’s agenda overlapped only partially with the issues that “appeared to dominate the nation’s public agenda and the workload of the nation’s policymakers,” id. at 9).

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  28. ^ See Rachel Bayefsky, Public-Law Litigation at a Crossroads: Article III Standing and “Tester” Plaintiffs, 99 N.Y.U. L. Rev. Online, 128, 130–31 (2024).

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  29. ^ See infra section I.A, pp. 14–17 (discussing the discretion that the certiorari process affords).

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  30. ^ Acheson Hotels, LLC v. Laufer, 144 S. Ct. 18, 21 (2023).

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  31. ^ See infra note 89 and accompanying text (discussing circuit splits).

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  32. ^ See generally Perry, supra note 23.

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  33. ^ See infra note 104 and accompanying text.

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  34. ^ Ezra Rosser, Introduction to The Poverty Law Canon: Exploring the Major Cases 1, 4 (Marie A. Failinger & Ezra Rosser eds., 2016) (noting that “in the modern era,” “antipoverty lawyers are avoiding the Supreme Court because of the likelihood of continued losses,” id. at 4); Vanessa A. Baird, The Effect of Politically Salient Decisions on the U.S. Supreme Court’s Agenda, 66 J. Pol. 755, 756 (2004) (arguing “that actors in the litigant community — parties to the cases, lawyers, or interest groups — use information about the Supreme Court’s policy priorities to determine which cases to bring to the Court”); Harris et al., supra note 24, at 1755 (noting efforts by the disability community to keep certain legal questions away from the Roberts Court).

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  35. ^ As Professor Robert Cover famously observed, “[l]egal interpretation takes place in a field of pain and death.” Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1601 (1986) (footnote omitted); see also Kevin H. Smith, Certiorari and the Supreme Court Agenda: An Empirical Analysis, 54 Okla. L. Rev. 727, 730 (2001) (noting that certiorari decisions translate directly into legal rules, which will, in turn, have both governing power and agenda-setting power).

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  36. ^ 142 S. Ct. 2228 (2022).

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  37. ^ Tejas N. Narechania, Certiorari in the Roberts Court, 67 St. Louis U. L.J. 587, 608 (2023) (using the Dobbs example to make the same point). Another recent example is Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 143 S. Ct. 2141 (2023). The consensus among Court-watchers was that the Court took this case because members of the Court wanted to reassess the constitutionality of race-conscious admissions policies in higher education, not because a lower court had forced the Court’s hand. See Narechania, supra, at 604–06, 606 n.75.

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  38. ^ Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 269 (5th Cir. 2019), rev’d, 142 S. Ct. 2228 (2022); see Rachel Bayefsky, Judicial Institutionalism, 110 Cornell L. Rev. (forthcoming 2024) (manuscript at 39) (on file with the Harvard Law School Library) (noting that “[f]rom a legal perspective, there was no immediate need to reconsider decades-old precedent”).

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  39. ^ See generally Shefali Luthra, Undue Burden: Life-and-Death Decisions in Post-Roe America (2024); Maya Manian, The Ripple Effects of Dobbs on Health Care Beyond Wanted Abortion, 76 SMU L. Rev. 77 (2023).

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  40. ^ 144 S. Ct. 2312 (2024).

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  41. ^ See id. at 2324.

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  42. ^ United States v. Trump, 91 F.4th 1173, 1180 (D.C. Cir. 2024), vacated, 144 S. Ct. 2312.

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  43. ^ See Adam Liptak & Abbie VanSickle, Trump Asks Supreme Court to Pause Ruling Denying Him Absolute Immunity, N.Y. Times (Feb. 12, 2024), https://www.nytimes.com/2024/02/12/us/politics/supreme-court-trump-immunity.html [https://perma.cc/766A-NLSF].

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  44. ^ The Court had declined earlier to “leapfrog” the circuit court’s review of the case, signaling a desire to give the legal issue an airing at that level. See Amy Howe, Court Won’t Hear Trump Immunity Dispute Now, SCOTUSblog (Dec. 22, 2023, 3:26 PM), https://www.scotusblog.com/2023/12/court-wont-hear-trump-immunity-dispute-now [https://perma.cc/J44X-X8HC].

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  45. ^ Some scholars thought Trump’s arguments weak enough to merit such treatment. See, e.g., Brief of Scholars of Constitutional Law as Amici Curiae in Opposition to Application for Stay of the Mandate at 4–5, 11, Trump, 144 S. Ct. 2312 (No. 23-939) (describing Trump’s immunity arguments as historically groundless, inconsistent with the Constitution, and contrary to Supreme Court precedent); Brief of Amici Curiae Scholars of the Founding Era in Support of the Respondent at 1, Trump, 144 S. Ct. 2312 (No. 23A745) (finding “no plausible historical case” for former President Trump’s “assert[ion] that a doctrine of permanent immunity from criminal liability for a President’s official acts . . . must be inferred” from the Constitution). But see, e.g., Jack Goldsmith, Why the Supreme Court Should Grant Certiorari in United States v. Trump, Lawfare (Feb. 6, 2024, 10:28 PM), https://www.lawfaremedia.org/article/why-the-supreme-court-should-grant-certiorari-in-united-states-v.-trump [https://perma.cc/A8HH-XERK] (expressing agreement with the D.C. Circuit’s conclusion, but advocating for Supreme Court review because of the importance of the federal question and because the D.C. Circuit’s decision “contains loose reasoning that will have a potentially large collateral impact on the construction of criminal statutes to burden the Article II authorities of sitting presidents”); Lee Kovarsky, Opinion, Trump Should Lose. But the Supreme Court Should Still Clarify Immunity, N.Y. Times (Feb. 29, 2024), https://www.nytimes.com/2024/02/29/opinion/supreme-court-trump-immunity.html [https://perma.cc/RF27-TPWZ] (noting the “weakness of [Trump’s] immunity arguments” and describing his sought-after immunity rule as “implausibly broad,” but arguing that “the Supreme Court should seize this opportunity to develop a narrow presidential immunity in criminal cases”).

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  46. ^ See Trump, 144 S. Ct. at 2347; infra pp. 74–77 (discussing this case).

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  47. ^ Carrie Johnson, Trump Appeals Immunity Ruling to the Supreme Court, NPR (Feb. 12, 2024, 5:12 PM), https://www.npr.org/2024/02/12/1230387417/trump-appeals-immunity-ruling-to-the-supreme-court [https://perma.cc/8TUU-5XDB].

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  48. ^ See infra section II.A, pp. 44–49. I use the term “narrative” as Professor Anne Ralph does: as “a particular representation of a series of events: a text or other embodiment of a certain telling or treatment of a story’s events.” Anne E. Ralph, Narrative-Erasing Procedure, 18 Nev. L.J. 573, 577 (2018).

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  49. ^ See Ralph, supra note 48, at 578 (“[N]arrative is how we make sense of the world.”); id. at 581 (“The ‘impression of causation’ that narrative creates is a ‘powerful’ way of ‘suggesting normality.’” (quoting H. Porter Abbott, The Cambridge Introduction to Narrative 44 (2d ed. 2008))); Jerome Bruner, Making Stories: Law, Literature, Life 25 (2002) (describing how stories can “promot[e] cultural cohesion” and invite listeners to see the world in the same way); Aderson Bellergarde François, A Lost World: Sallie Robinson, the Civil Rights Cases, and Missing Narratives of Slavery in the Supreme Court’s Reconstruction Jurisprudence, 109 Geo. L.J. 1015, 1015 (2021) (“The Supreme Court tells stories about who and what we are . . . .”). On the long tradition of analyzing the narratives within legal opinions, see Angela Onwuachi-Willig, The Supreme Court, 2022 Term — Roberts’s Revisions: A Narratological Reading of the Affirmative Action Cases, 137 Harv. L. Rev. 192, 192–93 (2023) (“[A]s feminist legal scholars, Critical Race scholars, and law-and-humanities scholars have long asserted, legal opinions themselves can also be read as narratives, . . . constructed . . . to offer one version of the facts and the legal principles applied to them as the objective truth.” (footnote omitted)); see also Peter Brooks, Narratives of the Constitutional Covenant, Daedalus, Winter 2012, at 43, 45 (describing the Supreme Court as the imagined “author of covenantal narratives,” linking the past, the present, and the future).

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  50. ^ See generally Injury and Injustice: The Cultural Politics of Harm and Redress (Anne Bloom, David M. Engel & Michael McCann eds., 2018).

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  51. ^ See Biden v. Nebraska, 143 S. Ct. 2355, 2365 (2023) (explaining that “the plaintiff must have suffered an injury in fact — a concrete and imminent harm to a legally protected interest, like property or money — that is fairly traceable to the challenged conduct and likely to be redressed by the lawsuit” (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992))).

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  52. ^ Jay Weaver, Disability Lawsuits Surge in Florida. Are They Removing Barriers or “Legal Extortion”?, Mia. Herald (Apr. 2, 2023, 10:22 AM), https://www.miamiherald.com/news/local/article271101667.html [https://perma.cc/7FCU-L9YA] (quoting a small business owner as saying “I felt extremely violated” after a disabled consumer sued his business for violating the ADA); see also Brief of Petitioner at 49, Acheson Hotels, LLC v. Laufer, 144 S. Ct. 18 (2023) (No. 22-429). In journalistic coverage of access lawsuits, this is a common narrative. See, e.g., Lauren Markham, The Man Who Filed More Than 180 Disability Lawsuits, N.Y. Times Mag. (June 15, 2023), https://www.nytimes.com/2021/07/21/magazine/americans-with-disabilities-act.html [https://perma.cc/A2FT-S26F].

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  53. ^ See Brief for Amici Curiae Disability Rights Education & Defense Fund, et al. in Support of Respondent at 2, Laufer, 144 S. Ct. 18 (No. 22-429); see also Kristen L. Popham, Elizabeth F. Emens & Jasmine E. Harris, Disabling Travel: Quantifying the Harm of Inaccessible Hotels to Disabled People, 55 Colum. Hum. Rts. L. Rev. F. 1, 9 (2023) (chronicling the injurious effects of ADA noncompliance on disabled travelers); cf. Elizabeth Sepper, Free Speech and the “Unique Evils” of Public Accommodations Discrimination, 2020 U. Chi. Legal F. 273, 275 (noting that “denial of service powerfully expresses that a person (or group) does not merit status as a consumer”).

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  54. ^ In addition to emphasizing the elusive aspects of Laufer’s claimed injury (because she sued hotels where she had no concrete plans to stay), Laufer, 144 S. Ct. at 20, Justice Barrett suggested that Laufer may have illicitly profited from her litigiousness by taking “a cut” of the legal fees that her unscrupulous lawyer sought from defendant hotels. Id. at 21. Laufer denied doing so. See Brief for Respondent at 13, Laufer, 144 S. Ct. 18 (No. 22-429) (referencing a declaration by Laufer “confirming she has never received any financial benefit from her federal ADA claims”).

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  55. ^ As Professor Melissa Murray has noted, a “jurisprudence of masculinity” appears to run through the decisions from recent Terms. Melissa Murray, Children of Men: The Roberts Court’s Jurisprudence of Masculinity, 60 Hous. L. Rev 799, 799–801 (2023); see also Leah M. Litman, Melissa Murray & Katherine Shaw, Of Might and Men, 122 Mich. L. Rev. 1081 (2024) (reviewing Josh Hawley, Manhood: The Masculine Virtues America Needs (2023)).

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  56. ^ See Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2256 (2024) (entertaining a challenge to a National Marine Fisheries Service regulation by “two vessels that operate in the Atlantic herring fishery” and referring to the Petitioners as “fishermen”); Adam Liptak, A Fight Over a Fishing Regulation Could Help Tear Down the Administrative State, N.Y. Times (Jan. 15, 2024), https://www.nytimes.com/2024/01/15/us/politics/supreme-court-fisherman-chevron.html [https://perma.cc/66PE-EYXP] (treating herring fisherman Bill Bright as the public face of Loper Bright); Loper Bright Enterprises, Inc. v. Gina Raimondo, Loper Bright Sup. Ct. Case, https://loperbrightcase.com [https://perma.cc/F6RT-6JKN] (identifying “the fishermen” involved in the case as three men, Stefan Axelsson, Bill Bright, and Wayne Reichle, although also noting that Axelsson “hopes [his daughter] will take over the family business someday”).

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  57. ^ See SEC v. Jarkesy, 144 S. Ct. 2117, 2124 (2024) (involving an enforcement action against investment fund manager George Jarkesy, Jr.).

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  58. ^ Fischer v. United States, 144 S. Ct. 2176, 2182 (2024) (involving the criminal prosecution of January 6th rioter Joseph Fischer); Jackson Katz, White Masculinity and the January 6 Insurrection, Ms. Mag. (Jan. 5, 2022), https://msmagazine.com/2022/01/05/white-men-insurrection-january-6-masculinity-trump [https://perma.cc/H6WJ-MT3X] (noting that “[a]ccording to data compiled . . . by researchers at the University of Chicago, of those arrested and charged with committing crimes at the Capitol, . . . 86 percent were men,” and that “[a]mong the organized groups most involved in the planning and execution of the day’s actions were cartoonishly hypermasculine groups” (citations omitted)).

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  59. ^ See, e.g., Trump v. United States, 144 S. Ct. 2312, 2327 (2024).

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  60. ^ See, e.g., FDA v. All. for Hippocratic Med., 144 S. Ct. 1540, 1553 (2024).

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  61. ^ See, e.g., City of Grants Pass v. Johnson, 144 S. Ct. 2202, 2211 (2024).

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  62. ^ Cf. Melissa Murray, Inverting Animus: Masterpiece Cakeshop and the New Minorities, 2018 Sup. Ct. Rev. 257, 259 (2019) (noting an inversion of the victim narratives that characterized earlier eras in the Court’s history).

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  63. ^ Lilie Chouliaraki, Wronged: The Weaponization of Victimhood 4 (2024).

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  64. ^ See Moyle v. United States, 144 S. Ct. 2015, 2016 (2024) (Kagan, J., concurring).

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  65. ^ See Garland v. Cargill, 144 S. Ct. 1613, 1627 (2024) (Sotomayor, J., dissenting).

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  66. ^ See Grants Pass, 144 S. Ct. at 2208.

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  67. ^ See Fischer v. United States, 144 S. Ct. 2176, 2182 (2024).

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  68. ^ See, e.g., United States v. Rahimi, 144 S. Ct. 1889, 1894–95 (describing the violence and threats that the defendant’s former girlfriend endured at his hands).

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  69. ^ See, e.g., Grants Pass, 144 S. Ct. at 2207–08 (acknowledging a homelessness crisis in the American West and discussing the circumstances that cause homelessness).

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  70. ^ Cf. Maybell Romero, “Ruined,” 111 Geo. L.J. 237 (2022) (discussing the power that judges wield when describing the experience of an injured party).

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  71. ^ Cf. Michael A. Zilis, The Limits of Legitimacy: Dissenting Opinions, Media Coverage, and Public Responses to Supreme Court Decisions 28 (2015) (“Reporters focus most of their coverage on the cases that reach the Court’s docket.”).

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  72. ^ The most notable case in this vein was Chiaverini v. City of Napoleon, 144 S. Ct. 1745 (2024), in which the Court addressed the narrow question of whether “a Fourth Amendment malicious prosecution claim” can proceed where the criminal proceeding at issue involved a valid charge as well as an allegedly baseless one. Id. at 1748.

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  73. ^ See, e.g., Joanna Schwartz, Shielded: How the Police Became Untouchable 87 (2023); William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 48–49 (2018). In the 2023 Term, the Court entertained two cases with a qualified immunity dimension, but neither decision addressed the qualified immunity issue. See Gonzalez v. Trevino, 144 S. Ct. 1663, 1665–66 (2024) (per curiam) (deciding the narrow question of what a plaintiff must prove in order to bring a retaliatory arrest claim); Nat’l Rifle Ass’n of Am. v. Vullo, 144 S. Ct. 1316, 1325 (2024) (noting that the NRA’s petition for certiorari asked the Court to consider the lower court’s qualified immunity ruling, but addressing only the First Amendment question the case raised).

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  74. ^ See Tara Leigh Grove, The Supreme Court’s Legitimacy Dilemma, 132 Harv. L. Rev. 2240, 2240 & n.1 (2019) (reviewing Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (2018)) (“[I]t is striking how many commentators — including prominent constitutional scholars, a former Attorney General, and current members of Congress — have recently questioned the legitimacy of the United States Supreme Court.” Id. at 2240.).

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  75. ^ See Melissa Murray, Making History, 133 Yale L.J.F. 990, 995 (2024); see also Matthew Connelly, Knight First Amend. Inst., Emerging Threats: State Secrecy, Archival Negligence, and the End of History as We Know It 2 (2018) (“History has often served as the ultimate court of appeal . . . .”); David J. Barron, Madison Lecture, The Court of History, 98 N.Y.U. L. Rev. 683, 684 (2023) (a judge “cautioning courts to attend to history’s future judgment”).

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  76. ^ In invoking the language of distribution, I take inspiration from recent work in Law and Political Economy, as well as from historical scholarship on the role of law in allocating resources, opportunities, and care. See Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1819–20 (2020); Yochai Benkler, The Ends of Law, in The Ends of Knowledge: Outcomes and Endpoints Across the Arts and Sciences 91, 92 (Seth Rudy & Rachael Scarborough King eds., 2023); William J. Novak, New Democracy: The Creation of the Modern American State 193–95, 266–67 (2022); Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy 1–2, 28 (2022); Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality 2 (2019). I also use the concept of distribution in ways that draw from the Law and Humanities tradition. This tradition interrogates how law directs our attention — what it makes visible, what it hides — and invites us to see differently. See Simon Stern, Maksymilian Del Mar & Bernadette Meyler, Introduction to The Oxford Handbook of Law and Humanities xxv (Simon Stern, Maksymilian Del Mar & Bernadette Meyler eds., 2019); cf. Rachel Bayefsky, Remedies and Respect: Rethinking the Role of Federal Judicial Relief, 109 Geo. L.J. 1263, 1266–67 (2021) (“Beyond changing parties’ material circumstances, another important role for federal judicial remedies is to express respect for parties that have suffered dignitary harm.”).

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  77. ^ See Steve Vladeck, 79. 42(ish) Decisions to Go . . ., One First (May 6, 2024), https://www.stevevladeck.com/p/79-43ish-decisions-to-go [https://perma.cc/5Y4B-DBH2] (describing the October 2023 Term as “the fifth term in a row in which the justices [will] decide 60 or fewer cases — which is remarkable when one considers that, before the OT2019 Term, the last time the Court decided so few cases was in 1864”).

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  78. ^ See, e.g., David E. Pozen & Adam M. Samaha, Anti-Modalities, 119 Mich. L. Rev. 729, 749–50 (2021); Victoria Nourse, The Paradoxes of a Unified Judicial Philosophy, 38 Const. Comment. (forthcoming) (on file with the Harvard Law School Library). But see generally Aaron Tang, Consequences and the Supreme Court, 117 Nw. U. L. Rev. 971 (2023).

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  79. ^ Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1, 62 (2016).

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  80. ^ City of Grants Pass v. Johnson, 144 S. Ct. 2202, 2228 (2024) (Sotomayor, J., dissenting). Justice Sotomayor used this phrase to critique the majority for deciding a case about homeless Americans in a way that, in her view, was ungenerous to their civil liberties concerns and overly solicitous of the local officials trying to eradicate them from public spaces. See id. at 2228–31.

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November 10, 2024

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