This time of year is when our Supreme Court announces a bunch of decisions before the Nine head out for the summer. It’s a tall order because the cases have big consequences for the lives of Americans in religion, speech, abortion, the environmental, public health and safety, guns, privacy, commerce, tech and so on.
The Court’s job isn’t just to decide the case. It has to explain itself. The judge-is-like-an-umpire metaphor only goes so far. A real ump doesn’t turn to the stands and say: Hey folks, thanks for your patience, let’s take a few minutes here and let me explain why I think the winning run was actually tagged out at home plate.
Scotus unlike the ump has to splain.
Scotus deliberates in private (at least until the Leak of 2022) but explains in public. Splaining is bound up with result because you can’t stick to constitutional principles if you don’t explain how the decision fits with them.
How would you explain a Supreme Court case to a young friend or family member? How to do it in a way that wouldn’t make their eyes glaze over? It’s not that law is, sigh, just too darn complicated to explain simply. No, legalese is self-inflicted. Legal prolix is like an inside baseball, quirky old swing and stance that courts, law schools, legal writing and some in our legal profession tend to perpetuate.
Let’s change that, and let’s see Scotus encourage and set a good example to explain more simply.
“If you can’t explain it simply, you don’t understand it well enough.” This from Einstein the great explainer. Last time I checked into physics and secrets of the universe they seemed like harder stuff than law. Yet our most gifted scientists see authenticity in simple explanations.
So, if you hear really roundabout talk about a Scotus case, you might ask yourself whether the speaker understands the case. And in some cases the Court itself struggles to reach a convincing consensus explanation.
Religion cases have historically been some of the messiest cases for the Court to explain clearly. If you pull up the text of this week’s case (Carson v. Makin) including the majority and dissenting opinions, there’s a lot to wade through.
But the case boils down to this: Does the Constitution think it’s okay for a state to give money to parents to help pay their kid’s tuition at a religious school? Answer this week: Yes, if the state would also give tuition assistance for a non-religious school.
The reasoning? The First Amendment’s Religious Free Exercise Clause. A state law that says ‘no tuition assistance for a religious school but AOK for the non-religious school‘ is unconstitutional because it infringes on the parents’ protected right to exercise religion.
Social media can easily mess with good explaining, running it off the rails before public opinion has a clear picture of: 1) what was decided and 2) what was the main reason.
If we get that two-part picture down in each case, we can more easily line things up and see the trends. For example, we now see one more example that the Scotus majority in religious freedom cases leans toward protecting free exercise. The Court is less concerned about government “establishing” a theocracy or one religion (i.e. Establishment Clause) than about protecting religious exercise and pluralism. In a 21st century America where religious pluralism is the norm and increasing, the Court’s decision is understandable.
That’s at least one way to splain it.