Monday, June 13, 2016

Overreading the Tea Leaves?

Mark Tushnet

As is often observed, the Supreme Court operates both behind closed doors and in the open. Because the doors are quite securely closed, though, commentators on the Court are driven to read what the Court says as revealing what happened behind the closed doors. This sometimes (often?) leads to overinterpretation.

A good example is a piece by Dahlia Lithwick in Slate on Williams v. Castillo, last week's decision about judicial recusal. She writes, "Nobody with a wireless signal can possibly miss the fact that the court waded into the murky discussion over judicial bias only days after Donald Trump accused the federal judge overseeing a class-action suit against Trump University of bias." There are several problems with this. (1) The Court "waded into" the area months ago, when it granted review. (2) It takes quite a while to prepare opinions, and it's implausible (in the extreme, I think) that anything significant in the Court's opinions was influenced by Trump's comments "only days" before the Court released its opinion (although I suppose one could go through the opinions with a fine-toothed comb to find something that might have been inserted at the last minute).

(3) It's also implausible, I think, that the Court rushed out its decision because of Trump's comments. Opinions tend to be released when they are ready. Sometimes, they are rushed out because a lot turns on a quick resolution, as in this year's decision in Welch v. United States or, notoriously, Bush v. Gore.  And sometimes they may be delayed for political reasons, as might have happened with Roe v. Wade. But the sort of low-level politics suggested by Lithwick's comment seems to me quite unlikely to have played any role in the timing of the decision's release.

At the same time, though, the very fact that Lithwick -- and I assume others -- made the connection between the opinions and Trump's comments may shape the public understanding -- the culture -- associated with the decision. So, retrospectively, Lithwick may -- in a sense -- be right.

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