The legal profession is much like a priesthood; both lawyers and theologians interpret a central text, be it the Bible, the Quran, the Gita, or the Constitution. We bury ourselves in canonical commentaries on that text. And we are all supplicants to beings much more powerful than ourselves.

Which explains why I’ve spent the past few years contemplating what happens when God goes mad.

The Supreme Court wrapped up its most recent term during a bizarrely haphazard celebration of the United States’ 250th birthday. And it has struggled to articulate a coherent vision of the Constitution no less than President Donald Trump has struggled to keep the National Mall’s reflecting pool clear during that celebration.

The Court isn’t just the most powerful institution in the United States — the only body capable of overriding both Congress and the president. It is supposed to be the caretaker of something sacred and eternal. As Justice Antonin Scalia once wrote, the whole purpose of a written constitution is “to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable.” 

That is, the Constitution fixes in place certain rights and governmental structures that are not supposed to change just because someone loses an election or because a few seats on the Supreme Court change hands. The right to free speech, the rule establishing that people born in the US are Americans, and the idea that all Americans, including the president, are subject to the same laws are abiding principles that should survive a change in administration or in the Court’s makeup.

But this Court does not simply overrule foundational precedents so often it is difficult to keep track; its work is increasingly illegible to people — even lawyers — who do not share the Republican justices’ values. I am grateful that I no longer practice law, because one of a lawyer’s primary duties is to advise clients on whether something they plan to do in the future is legal. And this Court’s interpretations of the law are often too opaque and unpredictable to allow lawyers to advise clients on what the law will be tomorrow.

One of the most prestigious writing assignments in the American legal academy is the Harvard Law Review’s annual Foreword. Last year, this assignment went to Richard Re, an insightful right-leaning scholar on Harvard’s own faculty, and Re spent much of his Foreword discussing why “America’s two competing legal cultures” have diverged. 

Re writes that, for many years, the Court was dominated by “swing” justices like Lewis Powell, Sandra Day O’Connor, and Anthony Kennedy who were “Republican appointees selected under conditions that facilitated the identification of moderates.” These justices were all moderate conservatives who weren’t particularly sympathetic to liberal causes, but they also tended to shy away from decisions that would alienate half of the country. As Re writes, Powell, O’Connor, and Kennedy had a knack for avoiding “results that would divide the nation and threaten the Court’s legitimacy or popularity.”

Just as importantly, these swing justices forced “judges, advocates, commentators, and students” to all seek “ways of appealing to those median jurists.” 

Because a moderate justice “held the key to major victories,” lawyers and judges across the political spectrum had to ask themselves “what would Anthony Kennedy do?” and not “what outcome would I prefer?” In Re’s words, this “shared mission effectively forced the two opposed ideological groups to adopt a common language and mode of reasoning, at least when arguing their cases.”

Today, by contrast, the Court is dominated by a coalition made up of two camps: very conservative Republicans and fiendishly conservative Republicans. Republican legal elites spend their time crafting legal theories that sound fantastical or even farcical to lawyers who do not belong to their tribe. And when the Supreme Court embraces these theories, they are often impenetrable even to other federal judges.

This legal divide is, of course, symptomatic of a greater rot. Democrats and Republicans are as polarized in Congress and in the broader electorate as they are in the Supreme Court. Consumers divide over whether to buy the liberal brand of blue jeans, coffee, or beer or the nearly identical MAGA version. America is so divided it can’t even celebrate its 250th birthday. As I write these words, the nearly empty Great American State Fair is eclipsed by our head of state’s hyperfixation on an algae bloom and his broader desire to turn our semiquincentennial into a celebration of himself.

But the country does pay a significant price for its bifurcated legal priesthood, above and beyond the broader costs political polarization imposes on us all. The decisions handed down by one faction of this priesthood are increasingly incomprehensible to people outside that faction.

As a result, lawyers cannot reliably advise their clients when the law is constantly shifting and incomprehensible to many of them, and lawmakers cannot know in advance whether the bill they spend years shepherding into law will be struck down by the courts. And ordinary Americans, who may rely on their attorneys for counsel and who relied on lawmakers’ promises that they could actually legislate, can easily lose faith in a system that even lawyers cannot understand.

Meanwhile, the biggest loser may be the Court itself. When the legal priesthood’s nine prelates are unable to explain their decisions in ways lawyers can understand — when the high priests refuse to tell us why they decided cases the way they did or seem to abandon their longstanding beliefs once those beliefs inconvenience their political party — those decisions become fragile. A few shifts in the Court’s makeup could bring even more disruption, as the new guard casts aside decisions they find repulsive or that they simply cannot comprehend. 

In the worst case scenario for this Court, Democratic lawmakers who believe that the justices have weaponized the law against them could retaliate in ways that the Court cannot defend itself against.

The Alitoification of Brett Kavanaugh

One apparent consequence of a polarized legal priesthood is that justices who previously displayed hints of moderation are being pulled deeper into their respective camps — a shift that is embodied by Justice Brett Kavanaugh.

In the early years, when Kavanaugh and Justice Amy Coney Barrett were still newly installed on the Court, legal commentators often spoke of a “3-3-3 Supreme Court.” The three Democrats formed one bloc; Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch formed a far right bloc; and Chief Justice John Roberts, Kavanaugh, and Barrett broke with the MAGA justices often enough that they appeared to be collectively more cautious than Thomas or Alito.

In 1st Amendment cases, Kavanaugh joined a six-justice coalition that voted to preserve free speech rights that the most reactionary justices wish to abolish. Kavanaugh ruled that the military, under then–Commander-in-Chief Joe Biden, could require service members to be vaccinated against Covid-19. And he joined the Court’s short-lived decision in Allen v. Milligan (2023), which required Alabama to redraw its congressional maps to include an additional Black-majority district.

Not long after President Donald Trump’s reelection, however, Kavanaugh started acting much like his most partisan colleague, Justice Alito. Shortly before the recent term began, Kavanaugh authored his infamous “Kavanaugh stops” opinion, which argued that a person’s ethnicity is a “relevant factor” that law enforcement may consider when deciding whom to stop, and which also claimed that ICE operations targeting US citizens and lawful residents are a minor imposition that are “typically brief” — words he wrote just a few months before immigration officers killed Renee Good and Alex Pretti.

While three of Kavanaugh’s Republican colleagues voted to strike down many of Trump’s tariffs, Kavanaugh did not. Kavanaugh also voted to throw out thousands of absentee ballots after the Republican Party asked him to, rejecting a majority opinion by Barrett that devastated the GOP’s legal arguments. 

And Kavanaugh even claimed that the Constitution no longer guarantees that nearly everyone born in this country is a US citizen — a provision that was written into the 14th Amendment in 1868 — because “significant illegal immigration into the United States is a new circumstance that was largely unknown as of 1868.” (Unlike three of Kavanaugh’s fellow Republicans, he did say that a federal statute protects birthright citizenship, even as he tried to rewrite the Constitution.)

Kavanaugh’s conclusion doesn’t just defy the text of the Constitution itself; it also defies Scalia’s principle that constitutional meaning is fixed — a principle that has animated Republican judges’ approach to constitutional interpretation for at least a generation. Republicans inspired by Scalia have spent decades railing against the “living constitution,” the idea that constitutional meaning changes with society. Anyone who has paid attention to how Republicans read the Constitution would have thought that living constitutionalism died years ago. But, apparently, living constitutionalism is good now, so long as it aligns with the Republican Party’s shifting values.

It’s not entirely clear why Kavanaugh made this shift and decided to emulate Alito. It’s entirely possible that he will resume his alliance with Roberts and Barrett once a different mix of cases reach the Court. But that uncertainty about Kavanaugh’s future behavior only adds to the illegibility of this Court.

The Republican justices also abandoned the moral high ground on Roe v. Wade

Another legal concept that Republicans opposed until very recently is substantive due process: the idea that two provisions of the Constitution that prohibit the government from denying people “liberty” without “due process of law” create individual rights that are not explicitly mentioned in the Constitution.

Substantive due process was used by economic libertarians in the early 20th century to strike down a wide range of workplace regulations, including the minimum wage, the right to unionize, and a law limiting bakery workers to 60-hour work weeks. Substantive due process also played a starring role in Roe v. Wade (1973), the Court’s now-overruled decision establishing a constitutional right to abortion. (The idea was that the right to abortion is such an essential “liberty” that no amount of “process” could justify taking it away.)

Many of the Republican justices have embraced the traditional arguments against substantive due process in their past opinions. Thomas, for example, called it a “dangerous fiction” that “invites judges to … “‘roa[m] at large in the constitutional field’ guided only by their personal views.” Gorsuch railed against “judicial misuse” of substantive due process “to dictate policy on matters that belonged to the people to decide.”

But now that Roe is gone, and Republicans firmly control the Supreme Court, they’ve decided that giving judges free rein to dictate policy based solely on their personal views is a good idea.

In Mirabelli v. Bonta (2026), the Court used substantive due process to declare that public school teachers have a constitutional duty to out transgender students to their parents, with all three Democratic justices dissenting.

The opinion was very short, and it was a temporary decision handed down on the Court’s “shadow docket,” so it is possible that the justices will revisit this issue. But, for now, the Court appears to believe that judges can dictate policy on sensitive questions like whether a high school student can trust his teacher with a secret that the student isn’t ready to share with their parents. The idea that substantive due process is a “dangerous fiction” is suddenly no longer on most of the justices’ minds.

Of course, the fact that the Court now often hands down brief or unexplained decisions on its shadow docket, a mix of emergency motions and other matters the justices decide on an expedited basis, is another reason why this Court is often illegible to outside observers. Before Trump became president, the Court rarely handed down shadow docket decisions, and it typically provided lengthy explanations for any matter it decided.

But, in the absence of an opinion fully explaining why schoolteachers must out trans students, lawyers and lower court judges can do little more than guess which other policies this Court will dictate while it is roaming at large in the constitutional field.

The Supreme Court’s 2nd Amendment decisions are illegible even to other federal judges

Perhaps the most illegible of the Roberts Court’s major decisions is New York Rifle & Pistol Association v. Bruen (2022), which governs Second Amendment disputes.

Bruen requires judges hearing these cases to ask whether the modern-day gun law that is being challenged in court is “relevantly similar” to a law that existed when the Constitution was written. While the Court has struggled to explain how similar the two laws must be, Bruen did suggest that modern gun laws are especially unlikely to survive if they address “a general societal problem that has persisted since the 18th century.”

This novel legal test confounded judges. In a 2024 dissenting opinion, Justice Ketanji Brown Jackson quoted a dozen lower court opinions, some of them written by Trump appointees, which complained that judges cannot figure out how Bruen is supposed to work.

Bruen also led to absurd results right out the gate. That’s because one example of a general society problem that has persisted since the 18th century is violence between romantic partners — and the law generally ignored this problem until the late nineteenth century. In all 50 states, it was legal for married partners to beat their spouses until 1871, when the Alabama Supreme Court ruled that husbands and wives “may be indicted for assault and battery upon each other.” 

And so, just months after Bruen, a federal appeals court struck down the federal law that bars individuals subject to domestic violence restraining orders from possessing a gun.

When this case, known as United States v. Rahimi (2024), reached the Supreme Court, the justices seemed to back away from Bruen. Though Rahimi did not abandon Bruen’s unusual test, it pointed to founding era laws that have nothing to do with firearms — laws that sometimes required “individuals suspected of future misbehavior to post a bond” that they would forfeit if they “broke the peace” — and deemed this law to be similar enough to the modern day domestic abuser law to survive.

This term, however, the Court heard a challenge to a much more sweeping Hawaii law that required gun owners to get permission from a business’s owner or manager before they could bring a gun on that business’s property. The Hawaii law was drafted this way because four states had nearly identical laws in the 1700s that, in the words of Pennsylvania’s statute, made it illegal to “carry any gun or hunt on the improved or inclosed lands of any plantation, other than his own,” without securing “license or permission from the owner of such lands or plantation.”

And yet, in Wolford v. Lopez (2026), the Republican justices concluded that these nearly identical 18th century laws were not sufficiently similar to Hawaii’s law because, Alito claimed in his majority opinion, the old laws were primarily concerned with preventing poaching.

As a policy matter, it’s easy to see why these two cases came down the way they did. Rahimi involved a narrow law targeting dangerous individuals who had already received a court hearing. The law at issue in Wolford, by contrast, would have effectively banned guns in nearly every public place in Hawaii — because few gun owners are going to enter a business unarmed, find the manager, obtain permission to carry, and then return with their weapon.

But there’s no legal basis for these two outcomes, at least so long as Bruen is good law. The old laws at issue in Wolford are obviously more similar to Hawaii’s law than the old laws at issue in Rahimi were to the ban on gun ownership by domestic abusers. Bruen is unserious. And its legal standard is incomprehensible. 

There’s a difference between an illegible Supreme Court decision, and one that is merely wrong

There are many other recent decisions that are poorly explained, inconsistently applied, or otherwise illegible. 

The Court, for example, has never explained where its “major questions doctrine,” a newly minted theory that it used to block several actions by the Biden administration, actually comes from. It has also never used this doctrine, which Republican justices first articulated in 2014, against any president who isn’t named “Joe Biden” — although the Court’s six Republicans did split 3-3 on whether to apply it to a Republican president in Learning Resources v. Trump (2026), the tariffs case.

Similarly, in Medina v. Planned Parenthood (2025), the Republican justices appeared to create a special carveout to its rules governing which federal laws may be enforced in court in order to ensure that an abortion provider did not prevail in that case. This term, when the Court was confronted with a similar legal issue in a case that did not involve abortion, the justices did not even cite Medina, much less explain why their special rule did not apply to the new case.

At the same time, not every recent Supreme Court decision that involves a politically charged issue, or that divides the Court along partisan lines, can fairly be critiqued as illegible. This includes transformative decisions like Louisiana v. Callais (2026), which effectively repealed a 1982 amendment to the Voting Rights Act that required some states to draw a minimum number of legislative districts that would elect non-white lawmakers.

Callais was rooted in a concept called the “colorblind Constitution” that should be familiar to any law student who has passed their first semester of Constitutional Law. Colorblindness is the idea that laws that seek to create a racial underclass, such as Jim Crow laws, are morally and legally identical to affirmative action and similar programs that offer a benefit to racial groups that have historically been subject to discrimination. And this idea has been a mainstay of conservative judicial opinions involving racial issues for decades. Chief Justice Roberts summarized the colorblind theory of the Constitution nearly twenty years ago in a pithy line: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Similarly, National Republican Senatorial Committee v. FEC (2026), the Court’s latest decision striking down a campaign finance law, is grounded in the Republican Party’s longstanding belief that nearly all regulations of money in politics violate the First Amendment — a position that justices in both majority and dissenting opinions have advanced for decades. Trump v. Slaughter (2026), which gave Trump the power to fire nearly all leaders of “independent” federal agencies, also has a longstanding pedigree; the decision implemented a dissenting opinion that Scalia wrote in 1988.

Whatever else can be said about Callais, NRSC, or Slaughter, in other words, they were all rooted in ideas that have been part of legal debates for generations and that have been part of many law schools’ mandatory coursework for decades. Competent lawyers know how to advise clients on campaign finance law, even if they disagree with NRSC. Law professors know how to teach the concept of colorblindness, even if they think this idea is wrong.

That distinguishes these cases from decisions like Bruen, which require lawyers and judges to play an elaborate game of “why is a raven like a writing desk?” and guess how the justices will answer this unfathomable question. 

It is normal for whichever political faction controls the Supreme Court to implement controversial ideas that have long been endorsed by that faction. The current Court isn’t abnormal because it is conservative. It is abnormal because it frequently cannot articulate the basis of its decisions. It invents incomprehensible legal rules. It baffles judges. And, especially in its shadow docket decisions, this Court often provides no explanation whatsoever for transformative legal rulings.

The Court’s inability to explain itself makes it weak

Right now, as the justices pack up their chambers and get ready for their summer vacations, President Trump is preparing to give a long, droning speech to what has thus far been a barren celebration of America’s 250th birthday. It’s a terrible shame, because the semiquincentennial could have been a unifying event that renewed many Americans’ commitment to our nation’s foundational values. 

As Justice Gorsuch, of all people, said in a recent interview promoting his latest book, the United States is a “creedal nation.” We are not united by a single religion, a single ethnicity, or even a common culture. Instead, says Gorsuch, the American nation is defined by three values articulated 250 years ago in the Declaration of Independence: “all of us are equal,” “each of us has inalienable rights,” and “we have the right to rule ourselves.”

These foundational values are, of course, as much of a myth as the major questions doctrine, or as the idea that the architects of the 14th Amendment — who also created affirmative action programs like the Freedmen’s Bureau — believed in a colorblind Constitution. Thomas Jefferson, the author of the Declaration, wasn’t just a slaveholder; he was the leader of early America’s Southern political faction that sought to preserve slavery.

But myths have tremendous power. Gorsuch’s theory of America is largely borrowed from the late historian Gordon Wood, who credited the Great Emancipator Abraham Lincoln as the first American leader to find in the Declaration “a solution to the great problem of American identity.” Frederick Douglass spoke of the Declaration as the “RINGBOLT to the chain of your nation’s destiny.” Dr. Martin Luther King Jr. called the Declaration’s three principles a “promissory note to which every American was to fall heir.” 

From the pen of one of America’s most morally compromised early leaders came a narrative that inspired generations of Americans to build the world’s most successful liberal democracy.

Like any other priesthood, lawyers and judges also deal in mythology. The stories we tell about why the Constitution was drafted and what it sought to accomplish are sometimes fabricated, and they frequently rely on a selective reading of American history. But these stories are nonetheless powerful. And, when they are told by five or more justices, even Trump has yielded to them.

But the current Court’s inability to tell plausible stories has also weakened it considerably, and it’s causing some of the most prominent figures in US politics to question the legitimacy of the Supreme Court. 

In a 2023 interview, Justice Alito complained that his Court is “being hammered daily” by critics of its decisions, and he claimed that lawyers have an obligation to close ranks around him. “The idea has always been that judges are not supposed to respond to criticisms,” Alito said, “but if the courts are being unfairly attacked, the organized bar will come to their defense.” 

Instead, Alito lamented, some lawyers have “participated to some degree in these attacks.”

Unlike Alito, I do not believe that I gave up my First Amendment right to criticize my own government when I swore the oath that admitted me to the bar. But even if I wanted to defend this Court’s behavior, I often do not know how. 

How am I supposed to explain a shadow docket decision that the Court hasn’t even bothered to explain itself? How do I defend justices who’ve abandoned principles that they’ve advocated for decades, and who, again, did so without explaining why? How can I even articulate an argument in favor of Alito’s position that the Constitution, which has guaranteed citizenship to nearly everyone born in the United States for 158 years, suddenly does not?

Nor am I the only one who is experiencing this discomfort and who is beginning to question whether this Court should continue to wield the enormous influence it has over hundreds of millions of people’s lives. 

Last May, former Vice President Kamala Harris joined the growing chorus of Democrats arguing that “the idea of Supreme Court reform, which includes expanding the Supreme Court” should be part of an “expanded playbook” that Democrats might use to defend against a Republican judiciary. Congress may, by enacting a new law, add seats to the Supreme Court that can immediately be filled by the sitting president, although this idea has long been considered too radical for mainstream politicians to consider.

I don’t know which way the winds of politics will blow next. But I do know that, in a world where Donald Trump can become president, many ideas that were once considered far outside the bounds of the possible are now entirely plausible. It’s actually very normal for the United States to elect a Congress and a president that agrees with an idea that was recently articulated by one of the two major parties’ last presidential nominee.

The Republican justices, in other words, are playing with fire when they hand down decisions that are illegible to people, including lawyers, who do not share their values. Many of the Court’s recent decisions seem designed to convince Democrats that the justices are acting arbitrarily, and that they are motivated entirely by partisanship. Those justices should not be shocked if the next time Democrats are in power, they do something about it.

Source: Vox.