Thread by @mjs_DC

Rarely will you read a Supreme Court opinion that is not, at a minimum, "defensible." That's because smart lawyers have been paid large sums to craft arguments that sound persuasive, and the justices excel at adapting such arguments into a jurisprudence that *feels* reasonable.

https://twitter.com/conor64/status/1686409452788862976

SCOTUS journalism is challenging because, at this level, both sides have all the resources and brainpower necessary to construct a compelling case for their view of the law. Often, a reasonable person could read both sides' briefs and easily conclude that both sides are correct.

Because the parties (and amici) have already done all this legwork—and today's Supreme Court bar really is top-notch—the justices almost always have everything they need to write a "defensible" opinion that leads to their preferred outcome. That's a basic skill for any judge.

To report accurately on the Supreme Court, a legal journalist must look NOT only at individual opinions, but at a much larger set of cases—those decided on the merits, resolved on the shadow docket, disposed of at the cert stage, etc.—and search for broader trends and agendas.

A good legal journalist investigates the origin of a particular case, scrutinizes the development of the legal theory, studies its trajectory in the lower courts, and assesses why at least four justices voted to take it up now. What do they intend to accomplish with this case?

A good legal journalist examines the evolution of an idea—like the independent state legislature theory, or the race-blind vision of the Voting Rights Act—to see how interested parties transformed policy goals into legal arguments that *sound* plausible, at least on the surface.

A good legal journalist investigates the "major questions doctrine" at the heart of the student loan decision and asks how it can be squared with textualism; they also ask why the court took such an extraordinarily broad view of standing in this case, but not in so many others.

The point is: A good legal journalist does not take the Supreme Court at face value, whether they agree with an opinion or not. This job requires substantial background knowledge of the law, deep familiarity with precedent—and a grasp on how, exactly, cases wind up at SCOTUS.

I don't fault a layperson who reads a Supreme Court opinion and thinks: "This sounds right!" But we should ask more of any journalist who wishes to write about the court with authority. If you ask only whether a decision is "defensible," you are missing the point of the exercise.