How the Supreme Court learned to stop worrying and love the culture war
By Joe Broadmeadow
There is an old lawyer’s joke that goes: a precedent is a decision you like; an outlier is one you don’t. After the Supreme Court’s June 30 fireworks show, I’m retiring the joke. The Court has made it official policy.
In the space of a single Tuesday, the justices upheld birthright citizenship under the Fourteenth Amendment, blessed state laws barring transgender girls from girls’ sports under Title IX, struck down decades-old limits on party-coordinated campaign spending under the First Amendment, and overruled Humphrey’s Executor—a 1935 fixture of administrative law—so the President could fire an FTC commissioner because he felt like it (WHQR; State Bar of Wisconsin).
Four rulings. Four different theories of interpretation. One consistent outcome: whichever doctrine gets the culture-war team across the goal line that afternoon is the doctrine that gets to wear the robes.
Call it We the People vs. Me the Precedent.
Textualism, we were told for thirty years, is the grown-up alternative to judges making it up. Read the words. Honor the text. Leave your politics at the marble steps.
Fine. In West Virginia v. B.P.J., Justice Kavanaugh, writing for a unanimous Court on the statutory question, held that Title IX’s plain reference to “sex” means biological sex, so states may keep transgender girls out of girls’ sports (State Bar of Wisconsin). Whatever you think of the policy, the reasoning at least gestures at textualism: the word on the page, as it was understood when Congress wrote it.
Now flip to Trump v. Slaughter, same day, same author bench. The Federal Trade Commission Act says a commissioner may be removed only “for inefficiency, neglect of duty, or malfeasance in office.” Those are also words on a page. They were passed by Congress in 1914 and construed by a unanimous Court in Humphrey’s Executor in 1935. Ninety years of settled reliance. Gone. Not because the text changed, but because the majority discovered a “separation of powers” atmospheric pressure hiding between the syllables (Supreme Court).
Text is destiny when text serves the team. When text does not, we’re suddenly structuralists channeling James Madison’s mood ring.
Then there is NRSC v. FEC, which overruled Colorado II and torched party-coordinated spending limits on First Amendment grounds (State Bar of Wisconsin). Precedent, remember, is the ballast that keeps the law from tipping every time a new majority sits down. Unless the precedent inconveniences donors, in which case it’s a barnacle to be scraped.
Finally Trump v. Barbara, where Chief Justice Roberts—joined by three liberals and Justice Barrett—actually held the line on birthright citizenship. A 5-4 win for the Fourteenth Amendment (WHQR). One out of four. The exception that proves how thin the ice has become when reaffirming a 128-year-old rule feels like a stirring act of judicial courage.
I spent twenty years as a police officer in East Providence. I learned to read law the way you read a suspect’s story: watch what stays consistent when the pressure changes. Doctrine is supposed to be that consistent thing. It’s the reason a citizen with no lawyer and no lobbyist can still predict, roughly, how a rule will apply to her tomorrow.
What the June 30 quadruple-header shows is doctrine that shape-shifts under political pressure like a witness who’s been coached between depositions. Textualism for the culture-war statute. Structuralism for the presidential power grab. Originalism for the guns and the campaigns. Stare decisis whenever the outcome already tracks, and never when it doesn’t.
The tell isn’t any single decision. Reasonable people can defend each one in isolation. The tell is the pattern. Across four cases decided the same morning, the method is the variable and the result—more power for the President, more money for the party, more room for the states to police identity—is the constant.
That’s not judging. That’s advocacy in a black robe.
Here is the part that ought to worry conservatives as much as it worries me, and I say this as someone whose politics have never fit neatly on either team’s roster. A Court that treats interpretive method as a toolbox to be opened depending on the desired result has taught every future majority to do the same. The liberals were not appointed for life either. The pendulum is a physical law, not a political one.
When Humphrey’s Executor can be overruled in an afternoon, so can Heller. So can Citizens United. So can any decision, right or left, that a future five-justice bloc finds inconvenient on a Tuesday in June. The Court has just taught the country that “the law” is whatever six people say it is this term, and that the reasons offered are marketing copy for a conclusion already reached.
That is the true cost of doctrine-as-weapon. Not this ruling or that one, but the slow evaporation of the idea that the rules apply to the rule-makers.
We the People used to be the plaintiff of record in every case that mattered. Increasingly we are the caption on the letterhead, while the actual parties—Me the Precedent, Me the President, Me the Preferred Outcome—do the arguing inside.
The joke isn’t funny anymore. It’s the holding.
Joseph Broadmeadow is a retired police captain and the author of several crime novels and essay collections. He writes on politics, law, and public life from Warren, Rhode Island
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