Ten Words the Press Uses About the Supreme Court, Translated for Normal People

Every tourist guide has a phrasebook, and the best phrasebooks include the entries that matter most: "Where is the train station?" and "That is not what I ordered." I propose a phrasebook for Supreme Court coverage. Because the language of the Court story is a dialect, and the dialect's words do not mean what they sound like they mean. They are small packages with an argument folded inside, and the argument gets delivered to you before you have had a chance to inspect it.

The method is simple. For each word, I will say how it is usually used, define what the word should mean if it is going to be honest, test it against the record of named cases, and give a verdict. The cases are Bostock v. Clayton County, Moore v. Harper, Allen v. Milligan and Dobbs v. Jackson Women's Health Organization. I picked them because the same Justices, in different cases, land on different sides of the usual labels, which makes them a fair laboratory.

How the test works

Four facts about the cases first, so we are all looking at the same thing.

1. Bostock (June 15, 2020). By a vote of six to three, the Court held that firing someone for being homosexual or transgender violates Title VII's ban on discrimination "because of sex." Justice Neil Gorsuch, appointed by a Republican President, wrote the opinion, and Chief Justice Roberts joined it. Justices Alito, Thomas and Kavanaugh dissented.
2. Allen v. Milligan (June 8, 2023). By five to four, the Court upheld a ruling that Alabama's congressional map likely violated Section 2 of the Voting Rights Act, and left the state needing a second district where Black voters could elect their preferred candidate. Chief Justice Roberts wrote the opinion, and Justice Kavanaugh joined the three liberal Justices in the majority.
3. Moore v. Harper (June 27, 2023). By six to three, the Court rejected the "independent state legislature" theory in its strong form, holding that a state legislature does not escape review by its own state courts when it regulates federal elections. Roberts wrote it, with Kavanaugh and Barrett joining the liberal Justices, and Thomas, Gorsuch and Alito dissented.
4. Dobbs (June 24, 2022). Five Justices joined the opinion overruling Roe and Casey, and six voted to uphold the Mississippi law. Dobbs v. Jackson Read Closely, From Alito's History to the Joint Dissent reads the opinion closely.

Hold onto those, because they will keep coming back. If a word is to be fair, it ought to describe all four fairly.

Words about method

1. "Activist"

How it is used: as a charge against judges who rule against the speaker's side. What it should mean: a judge who substitutes his own policy preferences for the text and the law. The test: the word is nearly useless as a label by outcome. The phrase "judicial activism" was popularized in a 1947 magazine article by the historian Arthur Schlesinger Jr., and it has since been thrown in every direction. In Bostock, the dissenters said the majority had written a new law under the label of interpretation. The majority said it had simply read the words Congress enacted. Conservatives disagreed with each other on whether textualism required the result, as Bostock Was Written as Textualism, and Textualists Split Over It explains. In Moore, the Court said no to the legal theory that a conservative movement had championed.

Verdict: Fails as a label, passes as a test. The only honest use is to ask whether a ruling follows from the text and tradition or from the judge's preference, and that has to be shown with argument, not announced with an adjective. The post Are Conservative Justices the Real Activists? A Rebuttal in Six Points takes the fight on directly.

2. "Partisan"

How it is used: to say the Justices vote with the party of the President who appointed them. What it should mean: a judge who rules to help a party. The test: line up the votes above. In Milligan, a Justice appointed by a Republican joined the majority that ruled against a Republican state, and the Chief Justice wrote it. In Moore, three Republican-appointed Justices joined the liberal bloc to reject a theory that many Republican officials favored. In Bostock, a Republican-appointed Justice wrote for the winning side. Plenty of cases do split along familiar lines, and it would be silly to deny it. But a word that is true of some cases and false of others is a description of a pattern, not of the Court.

Verdict: Half-true at best. Different judicial philosophies correlate with different parties, which is not the same as taking orders from them.

3. "Ideological"

How it is used: as an accusation against a Justice who holds a philosophy. What it should mean: a judge who applies a fixed set of beliefs without regard to the case. The test: every Justice has a theory of the Constitution. A judge who has none is not neutral, he is unpredictable. The question to ask is whether the theory is stated, applied consistently and willing to produce results the judge dislikes. Justice Scalia's vote in the flag-burning case, Texas v. Johnson, is an example of the last, and Gorsuch's opinion in Bostock is another.

Verdict: True of everyone, therefore empty. Ask instead whether a judge's method constrains him.

Words about size and distance

4. "Extreme"

How it is used: to describe a ruling or a Court that has moved far from the mainstream. What it should mean: far from some stated baseline. The test: a distance requires a starting point, and the word usually hides it. Extreme compared with what, the public mood of the week, the position of other countries, or the text of the Constitution? In Dobbs, the holding was that the Constitution does not decide the question and elected representatives do. Whether that is extreme depends on whether you measure from the 1973 decision or from the Constitution's text, and the whole argument is about which baseline is correct.

Verdict: Unproven until the speaker names the baseline. If the baseline is a poll, say so. If the baseline is the Constitution, argue from the text.

5. "Radical"

How it is used: for a ruling that overturns precedent or a theory that challenges the status quo. What it should mean: the word comes from the Latin for "root," and it means going to the root. The test: the irony here is that the originalist claim is exactly that it goes back to the root, to the text as written. Whether that is radical is a matter of taste. As a matter of fact, overruling a precedent is not radical in the history of the Court. Brown v. Board of Education in 1954 held that the "separate but equal" doctrine of Plessy v. Ferguson from 1896 has no place in public education, and nobody now calls that radical.

Verdict: A synonym for "I don't like it." If a ruling is wrong, show what it gets wrong.

6. "Supermajority"

How it is used: to describe a six-to-three conservative Court as if it held a commanding, perhaps illegitimate, margin. What it should mean: in the Constitution, a supermajority is two-thirds, the threshold for proposing an amendment or overriding a veto. The test: the arithmetic is worth doing. Six of nine is exactly two-thirds, so in that narrow sense the word is arithmetically accurate. But here is what the word hides: the Court needs only five votes to decide a case, and one is a majority. A "supermajority" on a body that acts by simple majority is like having a larger umbrella in a room with no weather. And in Milligan the vote was five to four, in Moore the majority included the liberal Justices, and in Dobbs the opinion drew five votes. The word suggests a bloc that always wins. The record says the bloc is not a bloc.

Verdict: Correct arithmetic, misleading implication.

7. "Unprecedented"

How it is used: to say a ruling has no precedent. What it should mean: that nothing like it has happened before. The test: the Court has overruled its own decisions many times. Brown set aside Plessy for public schools. West Virginia State Board of Education v. Barnette in 1943 overruled a 1940 decision, Minersville School District v. Gobitis, in three years. Dobbs fits an established pattern, which From Plessy to Chevron, a Timeline of Precedents the Court Was Right to Overrule documents. You can argue that overruling was a mistake. What you cannot truthfully say is that it has never happened.

Verdict: Usually false. If the speaker means "rare," he should say "rare" and explain why rare is bad.

Words about authority

8. "Rogue"

How it is used: to say a Court has slipped its limits. What it should mean: an institution that defies the law that binds it. The test: the Court has no army and no budget of its own, and Hamilton in Federalist 78 called it the branch with neither force nor will, but only judgment. It can be checked: Congress sets its size and its appropriations, controls much of its appellate jurisdiction under the Exceptions Clause, and the Senate confirms its members, as The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses explains. The people can amend the Constitution to reverse it. In none of the four cases did the Court refuse to follow a law or a court order. Whatever you think of the outcomes, the Court in Milligan enforced a federal statute against a state, and the Court in Moore declined to give state legislatures a power they had asked for.

Verdict: False on the record. A court that disagrees with you is not a rogue. A rogue court is one that ignores the limits on it, and no one has shown that.

9. "Legitimacy crisis"

How it is used: to claim that the Court has lost its right to rule. What it should mean: a question whether the institution was lawfully established and operates by lawful means. The test: the Court sits under Article III, its members are nominated by the President and confirmed by the Senate under Article II, and its decisions follow the procedures the law prescribes. That is legitimacy in the constitutional sense. A different sense of the word is the public's acceptance of the Court, and that can rise and fall. But unpopularity and illegitimacy are different things. A decision you hate is a reason to argue, to elect people who will appoint other judges, to propose an amendment. It is not evidence that a lawfully constituted body has stopped being lawful. The idea that a court is illegitimate when it rules against you proves too much, because every Court has a loser. It also ought to make us uneasy about the proposals in A Supreme Court of 435 Justices, Where Court-Packing Logic Leads, which would damage legitimacy in earnest.

Verdict: Conflates unpopular with unlawful.

10. "Settled law"

How it is used: to say a precedent can no longer be questioned. What it should mean: a rule that has withstood the test of time and reliance. The test: the Court has long said that precedent is not an inexorable command, and in Dobbs the majority applied the factors it uses to decide whether to keep or overrule a decision. Stare Decisis Explained, and the Factors Justices Weigh Before Overruling sets them out. Precedent matters, and a good judge is slow to overrule. But "settled" is a conclusion, not a premise. Plessy was settled law for fifty-eight years, from 1896 to 1954.

Verdict: A claim to be argued, not a fact to be assumed. The question is always whether a precedent was right and whether stability outweighs the error.

Scorecard

The objection, and the answer

A fair critic says: words are compressions, and everyone uses them. The right is no better. Conservatives call liberal rulings "legislating from the bench" and "judicial tyranny," which are also arguments in a package. Why single out one side's vocabulary?

I accept the point in full. Every side compresses, and my own side's phrases deserve the same test. "Legislating from the bench" is a fair charge only if you can point to the text the judge ignored. The rule I am proposing applies to everyone: if a word carries a conclusion, make the speaker show his work. What I object to is not that the press uses loaded words. It is that the loading is rarely disclosed, and that the words are sometimes applied to rulings the speaker has not read. For a fuller map of how coverage frames the decisions, see How the Press Covers Supreme Court Decisions, and What the Stories Leave Out, and for a corrective on the Court's record at large, Seven Myths About the Roberts Court, Tested Against Its Own Opinions. If a term puzzles you, the site's glossary defines the legal ones.

The case in brief

1. Words like "activist," "extreme" and "rogue" carry an argument inside them, and a fair reader asks what the word means before accepting what it implies.
2. The record in Bostock, Milligan, Moore and Dobbs shows Justices crossing the usual lines, which undercuts "partisan" and "supermajority" as full descriptions.
3. "Unprecedented," "radical" and "settled law" fail against the history of overruling, from Brown in 1954 to Barnette in 1943.
4. "Rogue" and "legitimacy crisis" confuse a decision one dislikes with an institution that has lost its lawful authority.
5. The remedy for loaded words is the same for both sides: name the baseline, quote the opinion and show the work.

What you can do: the next time you read one of these ten words about a ruling, find the opinion's holding on the Court's website and decide whether the word fits before you repeat it.