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. 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. In recent cases, the Court’s solicitude has not generally fallen upon people experiencing homelessness or impoverished individuals seeking benefits, but instead has fallen upon “family businesses” and those otherwise perceived as oppressed by governmental excesses. The shift has been accomplished through both rhetorical and institutional means. The Justices have highlighted the plights of certain protagonists in their opinions. 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.
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. This classic article, which Tani cites as an influence, 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.” 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.” 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. 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. 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” and its “narrative of ease and obviousness” as well as its “[n]arratives of [d]enial” have served its institutional interests. 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, one of the most significant cases of the Term, Justice Gorsuch disparaged the use of “fictions” — with the implicit claim that they are disingenuous. 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. 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. 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. In his 1925 essay Law and Literature, one of the first contributions to the field, Justice Cardozo “furnishes a typology of judicial styles,” contending that these styles are inseparable from substance. 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.” 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 Times and Wall Street Journal, 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.” 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.
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* 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.
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