A Myth of Judicial Division: How the Legacy Media Lies to You about the Supreme Court

A Reductionist Narrative Poisons Public Perception of the Judiciary

If one were to fully and unquestionably believe the mainstream press and its account of the makeup and status of the United States Supreme Court, it would seem that the Court has never been more divided, is in the throes of an ideological war, and that every decision it makes is ultimately settled upon politically partisan grounds. Furthermore, an uncritical eye might believe the narrative the legacy media has been pushing for several years, and more so in recent months, that the Court should be reshaped to better represent American democracy. There are many problems with this narrative, and the primary one is that these assertions are not true. It is a narrative that miscasts the judiciary as a representative body, something it is not designed to be, and acts as though decisions by the Court are more partisan than the evidence provides.

This is not to say there are not ideological differences among the members of the Court and it is not to say that these differences cannot at times be seen in particular, politically-charged decisions. Recent events with the Texas legislature regarding abortion rights, for example, and the Court’s refusal to hear a case regarding the state law’s constitutionality is emblematic of this. Liberal members of the Court agreed to review the Texas abortion law’s constitutionality while the conservative members voted against doing so. This decision to not consider the Texas law, however, is itself an example of the press framing the story completely wrong. Whether this is due to a deliberate case of journalistic gaslighting or a sign that the modern press can’t bother to do its homework is not clear. Both can be true, and both can be true simultaneously. The Texas abortion law, which limits abortions to six weeks because that is when a human fetus is known to develop a heartbeat, was not rejected by the Court because of a pro-life majority on the bench. Rather, as the Court stated, it was because no one yet has standing to challenge the law. Standing is a practical and reasonable requirement in the world of American jurisprudence and at least some members of the press know this. The recent decision to not hear the challenge does not mean there will not be a hearing in the future, and it is likely it may be in the near future. Moreover, the Texas abortion law is likely to make its way to the U.S. Supreme Court not merely due to its limits on abortion rights but because of how the law deputizes citizens to police the behavior of their neighbors; something conservatives and progressives alike should be concerned about, whatever one thinks about the abortion issue.

The fact is that although there are always ideological divisions on the Court, especially regarding the most politically-charged matters of our time, the truth—as usual—is a bit more nuanced. A decision made in June 2021 underscores this point, wherein the Court ruled in the case of Lange v. California that the power of police to pursue a suspect without a warrant has definitive limits.

As reported by Damon Root at Reason magazine:

“The [Lange v. California] case originated when a California Highway Patrol officer observed Arthur Gregory Lange repeatedly honking his horn and playing his car stereo at a loud volume, both of which are traffic infractions at worst. The officer followed Lange's car and switched on his overhead lights just a few seconds before Lange pulled into his own driveway. Lange, who said he never saw the officer's lights in his rearview mirror, entered his driveway and pulled into his garage. The officer parked, exited his vehicle, stuck his foot under the garage door to prevent it from closing, followed Lange in, and had him perform field sobriety tests, which ultimately led to a DUI charge.”

The Supreme Court ruled that the scenario was beyond the scope of legitimate state power. Justice Elena Kagan, in her majority opinion, asserted, “We are not eager—more the reverse—to print a new permission slip for entering the home without a warrant.” The policeman surpassed his authority by entering the home. The decision was supported by Justices Kagan, Breyer, Sotomayor, Gorsuch, Kavanaugh, and Barrett. Essentially, some of the most so-called progressives and some of the most so-called conservative members of the Court overwhelmingly agreed that the state police officer had gone beyond the bounds of his legal authority by entering the home and thus violated the Fourth Amendment rights of Arthur Gregory Lange. It was not a big story in the legacy press because political division could not be emphasized.

If one were to believe mainstream journalists’ narrative of the Court, it might have been assumed that the decision would have been close and that it would have been decided on partisan grounds, but it wasn’t. Such assumptions miss the actual spirit of the Court by a mile. Decisions in recent years support a thesis counter to this mainstream narrative. The Matal v. Tam decision in 2017 (as reported by yours truly in the Oregon Encyclopedia and History Killers) was a unanimous decision that defeated a Trademark Office administrative rule. The decision was a victory for artists and entrepreneurs’ free speech rights. The case of Ramos v. Louisiana in 2020 (discussed further in my forthcoming book) saw the progressive Elena Kagan voting against the rights of an accused felon and conservative-libertarian Neil Gorsuch voting in favor of the rights of the accused and writing the decision that incorporated the Sixth Amendment’s right to a unanimous jury conviction against the states. The mainstream press, if predicting the outcome of the case, would have likely seen Kagan as the champion of the accused and Gorsuch as the champion of law and order. This kind of unsophisticated framing simply doesn’t comport to reality, however. Ramos, Matal, Lange, and many other decisions are evidence that the legacy press narrative is just plain wrong regarding the Court and how it operates in the real world.

We should not be surprised that a court made up of people holding various ideologies are going to split when a case is more ideological than others. It is almost too obvious of a point to make, and yet it needs to be said. Also, it is not that the Court doesn’t make terrible decisions. Indeed, some of its rulings (terrible or otherwise) are at times rooted in differences of ideology. Nevertheless, with cases like Ramos v. Louisiana, Matal v. Tam, and Lange v. California, it is also evident that the United States Supreme Court has in recent years made it a general practice to uphold quintessential rights values and express suspicion against undue government power. It has done so across partisan lines and in defiance of reductionist, binary thinking. Doing so is, after all, the entire reason for a Supreme Court.