The Insignificance of Judicial Opinions
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Introduction
Among law students, lawyers, jurists, and legal academics, the reasoning contained in Supreme Court opinions forms the indispensable object of examination. The centrality of those opinions is instilled from the very first moments of law school, as professors direct their students to scrutinize this key paragraph, that critical sentence, even the odd momentous footnote. The rationales undergirding various Supreme Court opinions receive not mere study, but valorization, worship, and occasionally even ridicule.
Judicial craft matters tremendously, we profess, because the reasoning contained in opinions determines whether the Court’s decisions will garner respect from not only the legal community, but also the larger American public. According to this dominant view, well-reasoned opinions become firmly embedded within law and society, whereas ill-reasoned opinions render themselves vulnerable to being overturned. Constitutional law courses dedicate countless hours to debating whether landmark opinions advanced the strongest possible arguments in justifying their outcomes. Would this ill-fated decision have proven more durable had the Court invoked an alternate rationale? Should the Court have relied upon the Due Process Clause or the Equal Protection Clause in issuing this decision? While such questions dominate intellectual discourse in constitutional classrooms, their reach extends well beyond the law school quadrangle. In American law, then, the opinion is not just a thing—it is the thing.[1]
Predictably, the Supreme Court itself has often issued judicial opinions hailing the paramount importance of judicial opinions. In 2022, for instance, the Court asserted, “Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise raw judicial power.”[2] The Court went even further three decades prior, when it proclaimed that its “underlying . . . legitimacy” is derived from “the Court’s opinions,” as “a decision without principled justification would be no judicial act at all.”[3]
Numerous Justices in nonjudicial settings have also exalted the significance of the reasoning contained in their official opinions. In 2019, Chief Justice Roberts’s year-end report on the federal judiciary stated, “When judges render their judgements through written opinions that explain their reasoning, they advance public understanding of the law.”[4] More recently, Justice Barrett encouraged “all engaged and interested Americans to read [Court] opinions” because it is the principled “reasoning” contained in those opinions that is the Court’s raison d’être: “[W]hen Congress enacts a law or something that’s driven by policy, you just have the bottom line. . . . There’s no explanation or reasoning behind it because it’s just the result that matters. But that’s not how the Court works.”[5] For Barrett, the Court’s realm within government is uniquely ruled by reason.
Law professors, who dedicate much of their intellectual energy to teaching and reading judicial handiwork, have also repeatedly waxed lyrical about opinions’ profound significance. Paul Kahn of Yale Law School has praised the judicial opinion’s “legitimating function,” deeming it fundamentally “an exercise in persuasion.”[6] Endorsing Justice Barrett’s vision, Kahn added, “While there are many different kinds of legal texts . . . the judicial opinion occupies a special place. Only here does law link command to explanation.”[7] Stanford’s Richard Thompson Ford, echoing Chief Justice Roberts, has suggested that judicial opinions educate the public. “Americans look to the courts not only to resolve specific disputes, but also for more broadly applicable ideas about justice,” Ford wrote. “The rationales offered by the courts can shape, expand, or limit our ideals.”[8]
This Essay contends that such claims wildly exaggerate the actual significance of judicial opinions. Celebrations of the all-consuming import of judicial opinions accord them a talismanic power, placing weight on opinions that they cannot possibly bear. The Supreme Court’s particular rationale for issuing decisions matters almost not at all in comparison to the Court’s bottom-line outcomes. In the court of public opinion, it is decisions that matter—not opinions. The public is almost completely unaware of the constitutional niceties that so preoccupy the legal community.[9] More controversially, this Essay further argues that even within legal circles, judicial rationales matter far, far less than is commonly asserted. Although lawyers frequently fetishize opinions, the content of those opinions plays precious little role in influencing their status—even among lawyers.
Before beginning in earnest, two brief caveats are in order. First, this Essay contends not that judicial opinions are irrelevant, only that they are comparatively insignificant. Opposing lawyers will, for example, continue disputing the meaning of judicial opinions and continue claiming that—properly understood—their clients should prevail. But we should drop the pretense that the quality of the judicial reasoning in those opinions matters overmuch in determining whether and how those precedents are wielded. Second, this Essay focuses upon judicial opinions, not judicial decisions. Whereas opinions form the Court’s reasoning, decisions involve relatively bare, brass-tacks judgments. Despite frequent odes to opinions’ preeminence, it is the underlying decisions that should receive pride of place.[10]
This Essay unfolds as follows. Part I explores how judicial reasoning plays little role in accounting for the status of prominent Supreme Court works, including Brown v. Board of Education, Griswold v. Connecticut, Roe v. Wade, and Regents of the University of California v. Bakke.[11] Part II ushers United States v. Carolene Products Co. to center stage—its standard position in American constitutional law—and then suggests that Footnote Four would be consigned to a bit part.[12] Part III examines some implications of foregrounding decisions rather than opinions. A brief conclusion follows.
Twenty-five years ago, Akhil Amar published his Foreword to the Harvard Law Review’s annual Supreme Court issue titled, “The Document and the Doctrine.”[13] Amar distinguished two types of constitutional law professors, sorting “documentarians,” who focus primarily on the Constitution’s text, from “doctrinalists,” who focus primarily on the Supreme Court’s constitutional interpretations and elaborations.[14] While Amar placed himself firmly, even proudly, in the documentarian camp and identified David Strauss as a leading doctrinalist, he also recognized that the two schools of thought overlapped in meaningful ways: “In some sense, we are all documentarians; we are all doctrinalists.”[15] Amar’s division is an illuminating one, but it is also radically incomplete. The duality obscures how a large part of understanding our constitutional order turns on highlighting neither the Constitution’s text nor even the Supreme Court’s opinions, but instead the Court’s bottom-line decisions. In this way, then, we are all in some meaningful sense decisionalists.
I. Decisions Matter. Opinions? Not So Much.
Although the legal community constantly offers paeans to the import of judicial opinions, those claims, upon careful inspection, appear dramatically overstated. The most revered constitutional achievement in American history—abolishing Jim Crow—was hardly the product of unassailable legal reasoning. Moreover, even if an opinion’s language and reasoning have literally been transformed into a punchline, as has happened to Griswold v. Connecticut, [16] that fact in no way precludes the underlying decision from forming a cornerstone of our constitutional order.[17] Conversely, it strains credulity to argue that many salient controversial decisions, like Roe v. Wade and Regents of the University of California v. Bakke, would have achieved near-universal acceptance if only their judicial reasoning had been stronger.[18]
Brown v. Board of Education is the sun around which American constitutional interpretation orbits. Justice Breyer, among many others, called Brown without qualification the Supreme Court’s “finest hour.”[19] Pamela Karlan labeled it “the crown jewel of the United States Reports.”[20] And in 1990, Robert Bork, who knew whereof he spoke, noted: “Brown has become the high ground of constitutional theory. Theorists of all persuasions seek to capture it, because any theory that seeks acceptance must, as a matter of psychological fact, if not of logical necessity, account for the result in Brown.”[21]
But Brown’s centrality hardly stems from anything resembling brilliant legal analysis contained in Chief Justice Warren’s opinion for the Court. To the contrary, Brown’s reasoning contains major, glaring lapses. For example, Warren’s invocations of social science—some of it quite shabby—in the notorious Footnote Eleven rendered Brown vulnerable to contemporaneous charges that it was insufficiently driven by legal considerations.[22] Indeed, one day after Brown, a New York Times columnist observed, “The court’s opinion read more like an expert paper on sociology than a Supreme Court opinion.”[23] Amplifying this point, the Times column was bluntly headlined: “A Sociological Decision: Court Founded Its Segregation Ruling on Hearts and Minds Rather Than Laws.”[24]
In addition, ambiguity mars the precise contours of Brown’s holding. Although Brown today serves as shorthand for the comprehensive elimination of state laws requiring racial segregation, Brown’s precise language targeted only school segregation. “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place,” Chief Justice Warren wrote. “Separate educational facilities are inherently unequal.”[25] Even intelligent readers nowadays often proceed as if those italicized words have been airbrushed from the opinion. And, as I discuss below, the Supreme Court’s actions following Brown invited, even courted, that analytical imprecision.
Finally, one of Brown’s component parts—the invalidation of Washington, D.C.’s school segregation in Bolling v. Sharpe—contained almost all assertion and no analysis.[26] The legal question in Bolling was, of course, particularly challenging because the Fourteenth Amendment’s Equal Protection Clause does not cover Washington, a federal entity. How could the Fifth Amendment, which does apply to Washington, possibly outlaw school segregation when it contains a Due Process Clause, but not an Equal Protection Clause? Perhaps even more importantly, how could the Fifth Amendment conceivably ban school segregation when it dated all the way back to the 1790s, when slavery pervaded American society and the recently adopted Constitution repeatedly bolstered the peculiar institution? But Bolling exhibited little interest in grappling with these monumental obstacles to concluding that the Constitution prohibited school segregation in Washington. “[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive,” Chief Justice Warren blithely asserted.[27] The lack of legal dexterity embedded in that sentence would cause many first-semester law students to cringe.
Contextualizing Brown amid the larger legal decimation of Jim Crow during the mid-1950s does not exactly enhance one’s admiration for the Warren Court’s analytical prowess. To the contrary, widening the frame makes the legal reasoning on display during the Brown era appear much bleaker. That is because the Supreme Court post-Brown offered no reasoning at all when it invalidated racial segregation in several spheres that did not involve education. Both Brown’s holding and its overall gestalt highlighted schooling’s special character; it even sought to curtail Plessy v. Ferguson’s relevance by noting that the nineteenth-century precedent “involv[ed] not education but transportation.”[28] One might have expected that when the issue of racial segregation in transportation arose after Brown that the Supreme Court would feel compelled to explore why transportation should be treated either similar to, or distinct from, education for Fourteenth Amendment purposes. Any such expectations, however, were quickly dashed. When the Court encountered a case involving segregation on buses in Gayle v. Browder in 1956, it issued a one-sentence per curiam decision that simply invoked Brown, utterly shunning legal analysis.[29] Browder was only one in a series of such unreasoned, single-sentence per curiam decisions invalidating racial segregation in innumerable municipal domains, including parks, beaches, and golf courses.[30]
At the time, some distinguished observers criticized the absence of reasoning found in this wave of post-Brown ipse dixits. In 1957, Alexander Bickel and Harry Wellington memorably chided the Court for issuing “opinions that do not opine.”[31] The Court’s post-Brown handiwork, they suggested, had grown frustratingly reliant on “the bare assertion,” rather than on “deliberation and rational[ity].”[32] Indeed, by another account, Browder and its ilk “[n]ot only . . . omit[ted] any discussion of the issue[s], but they declined even to identify the subject matter of the case.”[33] Given the deep uncertainty that drenched the Court’s desegregation project in the 1950s, Bickel and Wellington made sure to clarify: “This is not to say that the per curiam orders were wrong. Nor is it to say that they could not be founded in reason, only that the Court made no effort to do so.”[34] Viewed in this sense, the Warren Court’s honorable attack on Jim Crow turned on serial invocations of what nowadays might be derided as the “shadow docket.”[35]
Today, of course, such qualms about the Court’s unreasoned—but in no sense unreasonable—dismantling of Jim Crow seldom appear. Rather, to the extent that those per curiam decisions are recalled at all, their expansion of the assault on racial segregation serves to augment the Brown era’s already considerable sheen. Thus, despite ubiquitous claims that thoroughly reasoned written opinions are indispensable, the complete absence of such opinions post-Brown in no way casts a pall over the Court’s crowning achievement.
Other decisions that have garnered broad adherence have also done so despite—not due to—the underlying opinion’s analysis. In Griswold, Justice Douglas’s opinion for the Court invalidated Connecticut’s anticontraceptive statute by finding that it violated a right to privacy that stemmed from examining the shadows cast by an assemblage of enumerated constitutional protections. “[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance,” Douglas reasoned.[36] Rightly or wrongly, Griswold’s reasoning has drawn widespread howls.[37] Judge Posner, for example, has condemned Griswold’s “slipshod” quality, and noted archly, “[N]o judge has picked up [Douglas’s analytical] spear and tried to throw it farther.”[38] For his part, Justice Thomas long ago posted a mocking, scornful sign in his chambers, admonishing: “Please don’t emanate in the penumbras.”[39]
Despite ample ridicule heaped upon Griswold’s reasoning, its bottom-line recognition of a right to privacy has become firmly embedded within our constitutional culture. Supreme Court nominees are notoriously cagey during their confirmation hearings about appraising Supreme Court precedents if those decisions emit even a whiff of controversy.[40] It is thus highly revealing that when then-Judge Roberts was asked about Griswold during his 2005 hearing, he replied flatly: “I agree with the Griswold Court’s conclusion that marital privacy extends to contraception and availability of that.”[41] Roberts’s answer—which carefully accepted the case’s outcome, but not its reasoning—simultaneously illuminated and advanced Griswold’s constitutional canonization.
Relatedly, commentators often suggest that had the Supreme Court’s decision in Roe v. Wade been placed on a firmer constitutional foundation, then the right to abortion would not have become such an intense cultural flashpoint. This theory maintains that Justice Blackmun’s opinion in Roe should have eschewed the right to privacy rationale and embraced the Fourteenth Amendment’s Equal Protection Clause.[42] In 1992, shortly before her nomination to the Supreme Court, then-Judge Ginsburg advanced a version of this critique: “The Roe decision might have been less of a storm center had it . . . homed in more precisely on the women’s equality dimension of the issue . . . .”[43] That same year, Judge Posner suggested that Roe’s inadequate textual grounding explained the constitutional controversy that engulfed abortion. In an arresting turn of phrase, Posner termed Roe “the Wandering Jew of constitutional law.”
[Roe] started life in the Due Process Clause, but that made it a substantive due process case and invited a rain of arrows. Laurence Tribe first moved it to the Establishment Clause of the First Amendment, then recanted. Dworkin now picks up the torch but moves the case into the Free Exercise Clause, where he finds a right of autonomy over essentially religious decisions. Feminists have tried to squeeze Roe v. Wade into the Equal Protection Clause. Others have tried to move it inside the Ninth Amendment . . . ; still others . . . inside the Thirteenth Amendment. I await the day when someone shovels it into the Takings Clause, or the Republican Form of Government Clause (out of which an adventurous judge could excogitate the entire Bill of Rights and the Fourteenth Amendment), or the Privileges and Immunities Clause. It is not . . . a matter of the more the merrier; it is a desperate search for an adequate textual home, and it has failed.[44]
This notion that Roe became—and remained—incendiary because people harbored reservations about its actual constitutional underpinnings is extremely dubious. It fundamentally misapprehends the nature of much anti-Roe sentiment, which is driven by a belief that abortion is murder. I do not share that view. But if one holds that central premise, any constitutional rationale supporting Roe—no matter how airtight—would necessarily fail to persuade. In Roe’s immediate aftermath, one Cardinal in the Roman Catholic Church made precisely this argument. “How many millions of children prior to their birth will never live to see the light of day because of the shocking action of the majority of the United States Supreme Court today?” the Cardinal queried. “Whatever their legal rationale, seven men have made a tragic utilitarian judgment regarding who shall live and who shall die.”[45] Such deep-seated objections seem unlikely to recede even in the face of knockdown constitutional argumentation.
If Roe’s reasoning—rather than its overall outcome—were largely responsible for consternation surrounding the dispute, that sentiment should have subsided when the Supreme Court modified the rationale for abortion rights in Planned Parenthood of Southeastern Pennsylvania v. Casey.[46] After all, Casey jettisoned Roe’s trimester approach and the right-to-privacy framework in an opinion that emphasized equal protection considerations. In striking down Pennsylvania’s spousal notification requirement, for example, Casey emphasized women’s equality and autonomy: “A State may not give to a man the kind of dominion over his wife that parents exercise over their children.”[47] Justice Blackmun’s concurring opinion in Casey, moreover, expressly dropped the theory he espoused in Roe and championed the Fourteenth Amendment: “This assumption—that women can simply be forced to accept the ‘natural’ status and incidents of motherhood—appears to rest upon a conception of women’s role that has triggered the protection of the Equal Protection Clause.”[48]
But this altered constitutional rationale for abortion rights, of course, had no discernible effect in generating acceptance of the outcome among those who had already rebuked Roe. Imagining such a constitutional turnabout sounds risible. “Oh, I see! Before Casey, I doubted that the Constitution protected reproductive rights, but the scales have now fallen from my eyes,” said no one, ever. More than two decades ago, comedian Jon Stewart underlined the absurdity of this basic proposition, when he joked of Roe, “The Court rule[d] that the right to privacy protects a woman’s decision to have an abortion and the fetus is not a person with constitutional rights, thus ending all debate on this once-controversial issue.”[49]
Similar analysis applies to Justice Powell’s controlling opinion in Regents of the University of California v. Bakke.[50] That opinion prohibited universities from using racial quotas but permitted them to pursue affirmative action under the diversity rationale.[51] Then-Professor Antonin Scalia dismissed the analysis as woefully substandard: “Justice Powell’s opinion . . . strikes me as an excellent compromise between two committees of the American Bar Association on some insignificant legislative proposal. But it is thoroughly unconvincing as an honest, hard-minded, reasoned analysis of an important provision of the Constitution.”[52] Similarly, then-Professor Robert Bork complained, “[T]he solution may seem statesmanlike, but as constitutional argument, it leaves you hungry an hour later.”[53]
Suppose, though, that Justice Powell in Bakke had deemed affirmative action permissible, not on the basis of diversity, but instead as a remedy for historical and ongoing racial discrimination. Does anyone believe that the altered justification would lead Scalia, Bork, or any other affirmative action critic for that matter to have changed their minds? Really? As is so often the case, affirmative action’s opponents were fundamentally driven by distaste for Powell’s decision, not his opinion.
II. The Cult of Carolene Products
No single phenomenon better exemplifies the fetishization of judicial opinions than what we might call the Cult of Carolene Products.[54] Numerous distinguished jurists and scholars have contended that Justice Stone’s 1938 opinion in United States v. Carolene Products Co.—particularly Footnote Four—merits a central position in constitutional law because it provided a guiding light for the Warren Court’s egalitarian interventions during the 1950s and 1960s.[55] Justice Lewis Powell has deemed it “the most celebrated footnote in constitutional law.”[56] But many of its celebrants would surely dismiss that encomium as damning Footnote Four with faint praise. In an article tellingly titled “The Footnote,” Jack Balkin observed it has “enjoyed fame and fortune,” and “inspired countless books and law review articles.”[57] The preeminent Footnote-inspired volume—John Hart Ely’s Democracy and Distrust—argued that Carolene Products justified the jurisprudence of Chief Justice Warren, for whom Ely once served as a law clerk and to whom his magnum opus is dedicated.[58] Similarly, Robert Cover went so far as to call Footnote Four the “paradigmatic . . . text[]” of his “constitutional generation,” as it singularly “capture[d] the constitutional experience of the period from 1954 to 1964.”[59] And David Strauss, who served as Ely’s research assistant on Democracy and Distrust, has invoked his mentor’s work in arguing, “A good case can be made—and has been made—that Carolene Products was the theory of the Supreme Court of the United States under Earl Warren, from the mid-1950s until the late 1960s.”[60]
The appeal of this Footnote-driven narrative of the Warren Court is straightforward. On this theory, when Warren and his colleagues attacked Jim Crow—in Brown and its progeny—those decisions can be viewed as prototypical instances of the judiciary affording heightened protection to what the Footnote calls “discrete and insular minorities.”[61] When the Warren Court issued decisions promoting democracy—in, say, Gomillion v. Lightfoot and Baker v. Carr—the judiciary can be understood as discharging its duty to protect what the Footnote terms “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.”[62]
The trouble with viewing the Warren Court as executing the mission sketched in Footnote Four, however, is that it would have arrived as a complete and utter shock to the Warren Court itself. During Earl Warren’s entire sixteen-year tenure, a majority opinion cited Footnote Four a grand total of one time—and that lone citation appeared in a footnote.[63] This point is neither a recent revelation nor a state secret. More than three decades ago, Daniel Farber and Philip Frickey wrote, “Carolene Products is not even cited, much less relied upon in any axiomatic way, in Brown or any of the other traditional racial discrimination cases. . . . Even more surprisingly, Carolene Products was not cited in cases where the Court was more overtly concerned with perfecting the pluralistic political process.”[64] During the Warren Court era, then, Footnote Four was notable primarily for its conspicuous absence. Lucas Powe has memorably pressed this point: “If Footnote Four was the [Warren] Court’s Rosetta Stone, it was seldom on public display.”[65] It seems that Footnote Four did not actually become Footnote Four—that is, it did not attain its singular luster within legal circles—until the 1970s, or perhaps even the 1980s.[66]
It cannot seriously be maintained that the Footnote animated the Warren Court’s jurisprudence. The retrospective canonization of Carolene Products grows, of course, from a desire to legitimate the Warren Court as a lawful body—rather than a political one. But suggesting that forgotten fine print somehow justifies the Warren Court accords far too much legal and cultural weight to the governing language of Supreme Court opinions. Footnote Four is fine as far as it goes, but the truth is that the language on its own does not go very far at all.
One of the earliest high-profile judicial opinions that invokes Footnote Four is West Virginia State Board of Education v. Barnette.[67] It may be tempting to believe that Justice Jackson’s majority opinion in Barnette invalidated the mandatory flag salute measure because Jehovah’s Witness students are “discrete and insular minorities,” in Footnote speak.[68] The truth is, however, both less convenient and more intriguing. It is not Barnette’s majority opinion that invoked the Footnote, but instead Justice Frankfurter’s dissenting opinion, which would have required Jehovah’s Witnesses—and everyone else—to recite the Pledge of Allegiance upon penalty of expulsion.[69] Even jurists who believe themselves to be advancing the Footnote’s mission can do a spectacularly lousy job of doing so. Giving Footnote Four content is far from a self-executing enterprise because, of course, judging requires judgment.
Construing the Warren Court as simply fulfilling (unheard) orders from Justice Stone denies the Warren Court the credit that it deserves for using its judicial latitude to advance American egalitarianism. The reason that many lawyers revere the Warren Court is not because of the wisdom of its opinions or the wisdom of its predecessors’ opinions, but instead because of the wisdom of its decisions. The Warren Court had an uncanny knack for issuing momentous decisions that, even though sometimes initially disdained, almost invariably became constitutional bedrock. This path—running from the controverted, to the accepted, to the acclaimed—accounts for the Warren Court’s decisions in Brown, Baker, Engel v. Vitale, Griswold, Miranda v. Arizona, Harper v. Virginia State Board of Elections, and Tinker v. Des Moines Independent Community School District among many, many others.[70] Indeed, it is difficult to think of a major Warren Court decision that remains controversial in mainstream contemporary legal circles.[71] The sacrosanct status of the Warren Court’s signature achievements—in both the legal world and the world beyond—has almost nothing to do with the quality of its opinions, and everything to do with the quality of its decisions.
Just as it is misguided to credit Footnote Four for inspiring yesteryear’s admirable Warren Court decisions, the Footnote should not receive blame for the modern prevalence of groups making implausible claims of victimhood.[72] The trend of Goliaths casting themselves in the role of Davids appeared in American law long before Justice Stone had ever explored filled milk. A particularly vivid, early example of Goliath masquerading as David arose in Yick Wo v. Hopkins,[73] a case decided in 1886, nearly a half-century before Carolene Products.
In Yick Wo, the Supreme Court invalidated a San Francisco ordinance that prohibited operating commercial laundry facilities in wooden buildings without the city’s express authorization. The ordinance was neutral on its face. But San Francisco wielded the measure in a racially discriminatory fashion, targeting laundry owners of Chinese descent. Although nearly two hundred and fifty Chinese families sought approval to continue operating in wooden structures, San Francisco universally rejected their requests. In stark contrast, though, the city granted approval to all but one of the approximately seventy such requests submitted by businessowners of non-Chinese extraction. Surveying this blatant racial pattern, the Supreme Court concluded that San Francisco’s implementation of the ordinance was “so unequal and oppressive as to amount to a practical denial . . . of that equal protection of the laws.”[74]
Despite these ugly facts, the city filed a brief in the Supreme Court gamely insisting, “The city of San Francisco has not oppressed the chinese [sic].”[75] If anything, the brief counterintuitively suggested, the Chinese had in fact oppressed fair San Francisco. The city portrayed itself as the hapless victim of an omnipotent group composed of “3,000 foreigners, who have created a Tung Hing Tong association, which exercises legislative, executive and judicial power in this city and country in opposition to the lawful authorities.”[76] San Francisco further complained of “the concentrated power wielded by the Tung Hing Tong, springing from the united purpose, the united action, and the united contributions of its numerous constituents . . . .”[77] Those funds made Tung Hing Tong a “wealthy and powerful corporation,” one that “employ[ed] at very great expense, some of the most distinguished . . . and powerful members of the bar of San Francisco,” to help its members “obstruct the enforcement of the law.”[78] At the mercy of this behemoth, San Francisco bemoaned its own “subjugation,” and construed the ordinance as one last grasp at self-preservation: “Emasculated as the city has been by the Tung Hing Tong, we retain sufficient energy to raise a cry of alarm before the Tung Hing Tong drives us from our homes into the ocean.”[79]
San Francisco thus in no sense needed permission from Footnote Four to appreciate that it could be advantageous to cloak itself in the garments of victimhood. Even if its efforts ultimately proved unavailing, it is nevertheless instructive that—at the dawn of the Fourteenth Amendment’s interpretive journey—the city understood that this litigation posture was a wise one to strike.
Relatedly, the wake of Brown witnessed some white segregationists ludicrously rise to proclaim that they, not Black people, should be viewed as the actual aggrieved minorities. In March 1956, roughly two years after Brown, nearly every southern senator and congressman signed a joint letter that was formally labeled “A Declaration of Constitutional Principles,” but that everyone quickly called “the Southern Manifesto.”[80] That document famously asserted that the Supreme Court erred by finding that the Equal Protection Clause banned school segregation. Far less well known, however, is that Southern Manifesto signatories portrayed themselves as beleaguered, “victim[ized]” minorities—not racially, but regionally.[81] “We appeal to the states and people who are not directly affected by these decisions to consider the constitutional principles involved against the time when they too, on issues vital to them, may be the victims of judicial encroachment,” the Manifesto averred. “Even though we constitute a minority in the present Congress, we have full faith that a majority of the American people believe in the dual system of government . . . will in time demand that the reserved rights of the states and of the people be made secure against judicial usurpation.”[82]
Given the timing of Carolene Products’s canonization in the 1970s and ’80s, it is implausible in the extreme to maintain that the Footnote shaped the 1956 Manifesto. Critically, the segregationist effort to claim the mantle of minority status occurred not in a judicial court, but in the court of public opinion. Although the point is often misapprehended, the Manifesto’s drafters primarily directed its claims toward white people living in non-southern jurisdictions.[83] The Southern Manifesto’s extrajudicial constitutional interpretation thus suggests that many efforts along these lines stem less from a desire to win judges’ favor by claiming the Footnote Four high ground and more from broader cultural crosscurrents that have long defined American society.
III. Decisionalism’s Implications
Spotlighting decisionalism yields two primary implications. First, the legal community should expend far less effort contending that judicial opinions uniquely occupy the domain of reason in governmental decision-making. In addition to Justice Barrett’s extracurricular claim quoted above, Justice Scalia advanced a version of this idea in his Lawrence v. Texas dissent: “One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.”[84] He made this assertion in the course of claiming that Lawrence’s invalidation of antisodomy measures would lead the Court, inexorably, to recognize same-sex marriage.[85]
While Scalia accurately anticipated the Court’s decision in Obergefell v. Hodges, it is severely wrongheaded to believe that the Court always follows its ideas wherever they may lead. Instead, the Supreme Court routinely declines to heed the logic contained in its own opinions. In this sense, contrary to popular perception, the U.S. Reports teems with “restricted railroad ticket[s], good for this day and train only.”[86] For instance, Plyler v. Doe’s invalidation of a measure excluding unauthorized immigrants from public schools was intentionally designed to apply in only that particular set of circumstances, and thus to avoid spawning a generalized jurisprudence in this arena.[87] Taken to its logical conclusion, moreover, Obergefell’s rationale that excluding people from marriage violates the Constitution because doing so teaches some children that their parents exist in second-class unions would also lead the Court to recognize a right to plural marriage.[88] But the Supreme Court is, of course, not on the verge of validating a constitutional right to polygamy. That is because the judiciary—not unlike a legislature—often decides to travel down a particular road of logic only so far, and go no further.
Second, bringing decisionalism to the fore complicates some of the more extravagant complaints regarding the rise of the so-called “shadow docket.” Stephen Vladeck and others have argued that the Supreme Court’s increased issuing of decisions outside of its usual protocols—most importantly, lacking reasoned opinions—raises profoundly disconcerting questions regarding the institution’s legitimacy.[89] Short per curiam opinions “are equal parts obscure, inscrutable, and practically (if not actually) inaccessible,” Vladeck wrote, and are therefore troubling because “[t]he absence of legal reasoning for public consumption makes it impossible to know why the justices ruled the way that they did . . . .”[90] Vladeck added: “We follow the Supreme Court . . . not because we agree with all (or even most) of its decisions, but because we accept that the justices are exercising judicial . . . power. That acceptance, in turn, is inextricably linked to the rationales the Court provides for its rulings.”[91] There is, Vladeck underscored, an “inextricable link between the rise of the shadow docket and the decline of public confidence in the Court.”[92]
But decisionalism suggests that such critiques miss the mark. The reasons animating Supreme Court decisions may matter greatly to law professors and lower court judges, but it is implausible to assert that they matter in any material way to ordinary citizens. The Supreme Court’s public reputation may have experienced a sharp decline in recent years, but that decline is surely far more attributable to its underlying decisions rather than the reasons—or lack thereof—that it has offered to support those decisions. The public cares not about opinions, but outcomes.
Even among legal sophisticates, moreover, the Supreme Court’s greatest triumph—its decimation of racial segregation—was in no small part produced by an early version of the shadow docket. If judicial rationales rather than results were truly all-important, that chapter of Supreme Court history would be remembered as an embarrassment, but it is, of course, nothing of the kind. Those decisions, which might be characterized as exertions of “raw judicial power,” are an honored and honorable part of our constitutional heritage.[93] Thus, although Vladeck insists that “Supreme Court decisions are not legitimate or illegitimate because they are right or wrong,” it actually seems that decisions’ rightness or wrongness assessed over the long term largely—indeed, almost exclusively—drives their lasting status.[94]
Conclusion
Law professors often contend that the quality of opinions looms large in determining whether the judiciary’s handiwork garners acceptance. In a particularly evocative example, Jack Balkin contended that Roe proved incendiary in large part because Justice Blackmun’s opinion failed to heed Chief Justice Warren’s exemplary approach in Brown.
In hindsight, [Blackmun] probably should have written . . . Roe . . . with a much greater degree of care about winning public support and assuaging criticism. Chief Justice Warren’s decision in Brown is a model of eloquence and understatement, brief and statesmanlike, fully aware of its political context and deliberately designed to avoid confrontation and to conserve the Court’s legitimacy. Blackmun’s opinion[] . . . , by contrast, . . . [is] long-winded and devote[s] a very significant amount of space to technical legal issues. Warren’s opinion in Brown was written so that it could be republished in newspapers. Blackmun’s opinion in Roe was so complicated that Blackmun himself at one point contemplated writing an addendum explaining its meaning.[95]
Balkin argues in effect that Brown’s absence of law was a masterstroke and Roe’s (supposed) legal excesses spelled disaster. Such statements, however, place far too much emphasis on the ability of judicial reasoning either to coax assent or to elicit anger. Those responses are driven not by the intricacies of judges’ opinions, but instead by their bottom-line decisions. The judicial pen, in sum, should not be confused for a magic wand—no matter how expertly wielded. And that assessment is hardly a matter of mere opinion.
Copyright © 2026 Justin Driver, Robert R. Slaughter Professor of Law, Yale Law School. This Essay was prepared in conjunction with the Brennan Center Jorde Symposium held at UC Berkeley School of Law on November 18, 2024. I am grateful to John Kowal and the Symposium Selection Committee for once again inviting me to participate and to David Strauss for delivering a characteristically lucid, generative argument in the Jorde Lecture. The California Law Review editors deftly shepherded this piece to publication. I received insightful feedback on this Essay from William Baude, Laura Ferry, Emma Kaufman, Randall Kennedy, Sanford Levinson, Samuel Moyn, Lucas Powe, David Schleicher, David Strauss, and Garrett West. I received invaluable research and editorial assistance on this project from Jessica Boutchie, Kishore Chundi, Ben Roebuck, Ruth Tomlin, and Julia Udell.
[1]. See generally, e.g., What Brown v. Board of Education Should Have Said (Jack Balkin ed., 2002); What Roe v. Wade Should Have Said (Jack Balkin ed., 2005). Viewing judicial opinions as constitutional law’s sine qua non is the hallmark of David Strauss’s impressive body of scholarship. See, e.g., David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996); David A. Strauss, The Supreme Court, 2014 Term—Foreword: Does the Constitution Mean What It Says?, 129 Harv. L. Rev. 1 (2015); David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457 (2001). My Essay’s title, of course, pays homage to the final of these pieces. In this sense, and in the spirit of generating discussion, this Essay in effect aims to outflank Professor Strauss.
[2]. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2279 (2022) (internal quotation marks omitted).
[3]. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 865 (1992).
[4]. John G. Roberts, Jr., 2019 Year-End Report on the Federal Judiciary, Sup. Ct. U.S. 2 (2019), https://www.supremecourt.gov/publicinfo/year-end/2019year-endreport.pdf [https://perma.cc/UT4M-XTR2].
[5]. Ronald Reagan Presidential Found. & Inst., Onstage at the Reagan Library with Amy Coney Barrett, at 34:23–35:08 (YouTube, Apr. 4, 2022), https://www.youtube.com/watch?v=-xrAoEMZYJY (on file with the California Law Review).
[6]. Paul W. Kahn, Making the Case: The Art of the Judicial Opinion 1, 7 (2016). But see Sanford Levinson, The Rhetoric of the Judicial Opinion, in Law’s Stories: Narrative and Rhetoric in the Law 187, 187 (Peter Brooks & Paul Gewirtz eds., 2008) (characterizing judicial opinions as “rhetorical performances” and noting that “persuading the audience and demonstrating a certain authority over it . . . are not at all the same thing”).
[7]. Kahn, supra note 6, at 1. For similar analysis, see Erwin Chemerinsky, The Rhetoric of Constitutional Law, 100 Mich. L. Rev. 2008, 2008–10 (2002) (“[T]he opinions written by the Justices and issued by the Court are a central, not an incidental, aspect of American constitutional law and . . . focusing on the opinions as rhetoric can help us to understand and appraise the Supreme Court’s work.”).
[8]. Richard Thompson Ford, Derailed by Diversity, Chron. Higher Educ. (Sep. 2, 2022), https://www.chronicle.com/article/derailed-by-diversity [https://perma.cc/59H9-SQ8P].
[9]. See Justin Driver, The Supreme Court as Bad Teacher, 169 U. Pa. L. Rev. 1365, 1368 (2021) (noting that the public does not follow the Supreme Court’s docket); Helen J. Knowles, The Supreme Court as Civic Educator: Free Speech According to Justice Kennedy, 6 First Amend. L. Rev. 252, 263 (2008) (“What if the Court holds ‘vital national seminars’ that no one attends?”).
[10]. See also William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1844–45 (2008) (“Judgments become binding law, not opinions. Opinions merely explain the grounds for judgments, helping other people to plan and order their affairs. . . . Judicial opinions cannot claim authority from the same sources as judicial judgments do.”).
[11]. Brown v. Bd. of Educ., 347 U.S. 483 (1954); Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
[12]. 304 U.S. 144, 152 n.4 (1938).
[13]. Akhil Reed Amar, The Supreme Court, 1999 Term—Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26 (2000).
[14]. Id. at 26–27.
[15]. Id. at 27.
[16]. See infra text accompanying notes 37–39.
[17]. 381 U.S. 479 (1965).
[18]. Roe v. Wade, 410 U.S. 113 (1973); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
[19]. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 867 (2007) (Breyer, J., dissenting); see David A. Strauss, The Living Constitution 78 (2010) (contending Brown is “in the eyes of many . . . the Supreme Court’s finest hour”).
[20]. Pamela S. Karlan, What Can Brown® Do for You?: Neutral Principles and the Struggle over the Equal Protection Clause, 58 Duke L.J. 1049, 1060 (2009).
[21]. Robert Bork, The Tempting of America 77 (1990).
[22]. See Brown v. Bd. of Educ., 347 U.S. 483, 494 n.11 (1954); Edmond Cahn, Jurisprudence, 30 N.Y.U. L. Rev. 150, 157–67 (1955) (criticizing Brown’s invocation of social science).
[23]. James Reston, A Sociological Decision: Court Founded Its Segregation Ruling on Hearts and Minds Rather than Laws, N.Y. Times (May 18, 1954), https://www.nytimes.com/1954/05/18/archives/a-sociological-decision-court-founded-its-segregation-ruling-on.html [https://perma.cc/Y7MM-LRDE].
[24]. Id.
[25]. Brown, 347 U.S. at 495 (emphasis added).
[26]. Bolling v. Sharpe, 347 U.S. 497 (1954).
[27]. Id. at 499.
[28]. Brown, 347 U.S. at 491 (citing Plessy v. Ferguson, 163 U.S. 537 (1896)).
[29]. Gayle v. Browder, 352 U.S. 903 (1956).
[30]. See, e.g., New Orleans City Park Improvement Ass’n v. Detiege, 358 U.S. 54 (1958); Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955); Holmes v. City of Atlanta, 350 U.S. 879 (1955).
[31]. Alexander M. Bickel & Harry H. Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv. L. Rev. 1, 3 (1957).
[32]. Id. at 3–4.
[33]. Laura Krugman Ray, The History of the Per Curiam Opinion: Consensus and Individual Expression on the Supreme Court, 27 J. Sup. Ct. Hist. 176, 187 (2002).
[34]. Bickel & Wellington, supra note 31, at 4.
[35]. William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015).
[36]. Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
[37]. In my own (relatively idiosyncratic) view, contempt for Griswold’s reasoning is unwarranted. Justice Douglas’s interpretive approach in Griswold bears a striking resemblance to a venerated Supreme Court opinion, McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819). In McCulloch, Chief Justice Marshall can be understood as extrapolating congressional power to create a Bank of the United States by exploring the penumbras and emanations formed by Congress’s enumerated powers. See id. at 407 (“Although, among the enumerated powers of government, we do not find the word ‘bank’ or ‘incorporation,’ we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.”).
[38]. Richard A. Posner, Legal Reasoning from the Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights, 59 U. Chi. L. Rev. 433, 445 (1992).
[39]. David J. Garrow, Privacy and the American Constitution, 68 Soc. Rsch. 55, 56 (2001).
[40]. See Elena Kagan, Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 919, 920 (1995) (book review) (“[Then-Judges Ginsburg and Breyer] felt free to decline to disclose their views on controversial issues and cases. They stonewalled the Judiciary Committee to great effect, as senators greeted their ‘nonanswer’ answers with equanimity and resigned good humor.”).
[41]. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 207 (2005) (statement of John G. Roberts, Jr.).
[42]. John Hart Ely’s denunciation of Roe lambasted the right-to-privacy rationale, because “whatever else may be involved, it is not a case about governmental snooping.” John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 930 (1973).
[43]. Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1200 (1992).
[44]. Posner, supra note 38, at 441–42 (citations omitted). Earlier, then-Judge Ginsburg sang a different, more compelling tune on this question. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 383 (1985) (“I do not pretend that, if the Court had added a distinct sex discrimination theme to its medically oriented opinion, the storm Roe generated would have been less furious.”). Here, Ginsburg’s first thought was in fact the best thought.
[45]. Statements by 2 Cardinals, N.Y. Times (Jan. 23, 1973) (emphasis added), https://www.nytimes.com/1973/01/23/archives/statements-by-2-cardinals-cardinal-cooke-cardinal-kroi.html [https://perma.cc/P9N3-87N5].
[46]. 505 U.S. 833 (1992).
[47]. Id. at 898.
[48]. Id. at 928 (Blackmun, J., concurring).
[49]. Jon Stewart, Ben Karlin & David Javerbaum, America (The Book): A Citizen’s Guide to Democracy Inaction 90 (2004) (cited in Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373, 403 (2007)).
[50]. 438 U.S. 265 (1978).
[51]. Id. at 311–15 (opinion of Powell, J.).
[52]. Antonin Scalia, The Disease as Cure: “In Order to Get Beyond Racism, We Must First Take Account of Race.,” 1979 Wash. U. L.Q. 147, 148 (1979). For extensive analysis of then-Professor Scalia’s article and its implications for Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 143 S. Ct. 2141 (2023), see Justin Driver, The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education 25–35 (2025).
[53]. Robert H. Bork, The Unpersuasive Bakke Decision, Wall St. J., July 21, 1978, at 8.
[54]. Cf. Mary Anne Franks, The Cult of the Constitution (2019).
[55]. 304 U.S. 144, 152 n.4 (1938).
[56]. Lewis F. Powell, Jr., Carolene Products Revisited, 82 Colum. L. Rev. 1087, 1087 (1982).
[57]. J.M. Balkin, The Footnote, 83 Nw. U. L. Rev. 275, 281–82 (1989).
[58]. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, at v (1980) (“For Earl Warren. You don’t need many heroes if you choose carefully.”); see id. at 73–77.
[59]. Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 Yale L.J. 1287, 1316 (1982).
[60]. David A. Strauss, Is Carolene Products Obsolete?, 2010 U. Ill. L. Rev. 1251, 1259 (2010) (emphasis added); see id. at 1252 (“[I]t is fair to say that the Carolene Products footnote defined the federal courts’ agenda for a generation—one of the most momentous generations in the history of the Supreme Court and the federal judiciary.”); Ely, supra note 58, at viii (identifying Strauss as one of his research assistants).
[61]. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938); see Brown v. Bd. of Educ., 347 U.S. 483 (1954).
[62]. Carolene Prods., 304 U.S. at 152 n.4; see Gomillion v. Lightfoot, 364 U.S. 339 (1960); Baker v. Carr, 369 U.S. 186 (1962).
[63]. See Lucas A. Powe, Jr., The Warren Court and American Politics 489 (2000).
[64]. Daniel A. Farber & Philip P. Frickey, Is Carolene Products Dead? Reflections on Affirmative Action and the Dynamics of Civil Rights Legislation, 79 Calif. L. Rev. 685, 691–92 (1991).
[65]. Powe, supra note 63, at 489.
[66]. See Felix Gilman, The Famous Footnote Four: A History of the Carolene Products Footnote, 46 S. Tex. L. Rev. 163, 166 (2004); see also Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1986 (2016) (noting how, throughout the 1940s, Footnote Four was associated only with the “preferred position” theory of the First Amendment).
[67]. 319 U.S. 624 (1943).
[68]. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938).
[69]. See Barnette, 319 U.S. at 648–49 (Frankfurter, J., dissenting).
[70]. Brown v. Bd. of Educ., 347 U.S. 483 (1954); Baker v. Carr, 369 U.S. 186 (1962); Engel v. Vitale, 370 U.S. 421 (1962); Griswold v. Connecticut, 381 U.S. 479 (1965); Miranda v. Arizona, 384 U.S. 436 (1966); Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).
[71]. For an argument that the Warren Court declined to deliver plausible, progressive victories, see Justin Driver, The Constitutional Conservatism of the Warren Court, 100 Calif. L. Rev. 1101 (2012).
[72]. David Strauss has ventured a version of this argument.
The problem is that the Carolene Products approach to judicial review has degenerated into a competition among groups for victim status, playing out in court. To put the point crudely: Other groups want to claim that they are today’s version of Black people in the Jim Crow South—they are not getting fair treatment in politics—so the courts should protect them. The claims of these groups make up a significant part of what is going on today in constitutional law.
David A. Strauss, Polarization, Victimization, and Judicial Review, 113 Calif. L. Rev. 2155 (2026)
[73]. 118 U.S. 356 (1886).
[74]. Id. at 373.
[75]. Authorities and Argument for Defendant and Respondent at 20, Yick Wo, 118 U.S. 356.
[76]. Id. at 17.
[77]. Id. at 18.
[78]. Id. at 18–19.
[79]. Id. at 101.
[80]. Text of 96 Congressmen’s Declaration on Integration, N.Y. Times, Mar. 12, 1956, at 19. For context and analysis, see Justin Driver, Supremacies and the Southern Manifesto, 92 Tex. L. Rev. 1053 (2014).
[81]. Text of 96 Congressmen’s Declaration on Integration, supra note 80, at 19.
[82]. Id.
[83]. See Driver, supra note 80, at 1071 (arguing that the Manifesto “was not primarily designed with a focus on whipping up segregationist sentiment among southerners but instead on tamping down integrationist sentiment among northerners”).
[84]. 539 U.S. 558, 604 (2003) (Scalia, J., dissenting).
[85]. See id.
[86]. Smith v. Allwright, 321 U.S. 649, 669 (1944) (Roberts, J., dissenting). See generally Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L. Rev. 883 (2006).
[87]. 457 U.S. 202, 230 (1982); see Linda Greenhouse, What Would Justice Powell Do? The ‘Alien Children’ Case and the Meaning of Equal Protection, 25 Const. Comment. 29, 47 (2008) (noting that Justice Powell deliberately aimed to prevent Plyler from articulating anything that came even close to resembling a generalizable principle).
[88]. See Obergefell v. Hodges, 576 U.S. 644, 667–68 (2015); id. at 704–05 (Roberts, J., dissenting).
[89]. See Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic 21–22 (2023); see also Editorial, The Supreme Court Owes the Country Explanations for Its Big Decisions, N.Y. Times (July 28, 2025), https://www.nytimes.com/2025/07/28/opinion/supreme-court-emergency-rulings.html [https://perma.cc/9DTE-2PGM] (“[T]he credibility of judges depends on their ability to offer public explanation for the legal basis of their decisions.”); C-SPAN, Justice Kagan at 2025 Ninth Circuit Judicial Conference, at 33:30–36:07 (C-SPAN, July 24, 2025), https://www.c-span.org/program/public-affairs-event/justice-kagan-at-2025-ninth-circuit-judicial-conference/662701 (on file with the California Law Review) (“[M]aybe . . . the most important thing I have to say [about the emergency docket] is the need to explain things . . . . [C]ourts are supposed to explain things. That’s what courts do. They’re supposed to explain things to litigants. They’re supposed to explain things to the public generally.”).
[90]. Vladeck, supra note 89, at 21.
[91]. Id. at 244–45.
[92]. Id. at 277.
[93]. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2279 (2022) (internal quotation marks omitted).
[94]. Vladeck, supra note 89, at 277.
[95]. Jack M. Balkin, Roe v. Wade: An Engine of Controversy, in What Roe v. Wade Should Have Said, supra note 1, at 3, 41–42 (citations omitted).
