Notice & Comment

Justice Barrett Says: “Read the Opinion”—Justice Kagan Says: “Where Is the Opinion?”

On April 4, Justice Barrett made an important speech at the Reagan Presidential Library.[1] Her message was “read the opinion.” At a time when confidence in the Supreme Court is low and falling and the belief that the Court is just a cluster of politicians in robes is high and rising, Justice Barrett’s point was simple and compelling—the best way to determine whether a decision was purely political or was the product of an effort to apply legal principles is to read the opinion of the court or agency that made the decision.

In Barrett’s words:

Does [the opinion] read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?”

On April 6, Justice Barrett joined a five-Justice majority in reinstating a major rule that had been issued by the Trump administration and vacated by a court at the request of the Biden administration. Notably, the majority took that significant action without writing any opinion in which it explained why it so acted.[2]

Justice Kagan wrote a dissenting opinion on behalf of four Justices in which she attributed reasoning to the majority and criticized that reasoning as inconsistent with both the facts and the law. By contrast, the Wall Street Journal attributed reasoning to the majority that suggests that the majority acted on the basis of sound legal principles.[3]

I have no idea whether the majority acted for the reasons attributed to them by Justice Kagan or the reasons attributed to them by the Wall Street Journal. For all I know, the majority acted only because it likes Donald Trump and dislikes Joe Biden or because it decided the case on a Wednesday instead of a Thursday. I can not know why any court acts unless the court states its reasons for acting. Justice Barrett’s speech was accurate and important. She needs to reread it and to act accordingly.

[1] With Divisive Cases Coming, Barrett Says ‘Read the Opinion’, AP, (Apr. 5, 2022).

[2] Louisiana v. American Rivers, Docket No. 21A539 (Apr. 6, 2022).

[3] Throwing ‘Shadow Docket Shade” WSJ (Apr. 7, 2022)..

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