Episode 67: Karen Tani
Curation, Narration, Erasure: Power and Possibility at the U.S. Supreme Court
The start of a new year, the slouch towards the first days of the new semester, the last episode of yet another season of the pod: we’re feeling sentimental here at Digging a Hole HQ. As you take down your old calendars and put up the new, we’re going to take some time to engage in a tradition of ours at the pod and discuss the 2024 Harvard Law Review Supreme Court foreword, “Curation, Narration, Erasure: Power and Possibility at the U.S. Supreme Court,” with its indomitable author and the Seaman Family University Professor at Penn Carey Law, Karen M. Tani.
We begin by discussing the genre of the Harvard Law Review foreword, and how Tani’s approach differs from forewords of yore. Next, we dive deeply into each prong of Tani’s framework of curation, narration, and erasure. We turn to familiar themes of the law-politics divide and the relationship between law and history, with Tani clarifying how this past Supreme Court term adds to our understanding of these big ideas. Finally, we conclude the pod with a discussion of prophecy (and here’s one: you’re going to have a ball with this episode, so hurry up and hit play!).
This podcast is generously supported by Themis Bar Review.
Referenced Readings
“A Century-Old Law’s Aftershocks Are Still Felt at the Supreme Court” by Adam Liptak
“Nomos and Narrative” by Robert M. Cover
“Selling Originalism” by Jamal Greene
The Prophetic Imagination by Walter Brueggemann
“Demosprudence Through Dissent” by Lani Guinier
“A Plea to Liberals on the Supreme Court: Dissent With Democracy in Mind” by Ryan D. Doerfler and Samuel Moyn
What are Sam & David reading?
Sam just finished Alex Landragin’s novel Crossings, which he highly recommends if you are interested in Charles Baudelaire, Walter Benjamin, European colonialism, or the transmigration of souls – all topics David is known to be obsessed about.
David is reading Nick Stephanopoulus’s excellent new book, Aligning Election Law, and every post on This is Anfield during this amazing Liverpool season.
Episode Transcript
[00:00:00] David: This podcast is generously supported by Themis Bar Review. For more information about Themis, check out themisbar.com. Thank you very much, and now back to the show.
[00:00:30] David: All right, all right, all right. Welcome to Digging a Hole: The Legal Theory Podcast. On this podcast, my co-host and colleague and friend Sam Moyn and I, David Schleicher, talk about legal theory and whatever else is on our minds. What’s up, Sam?
[00:00:53] Sam: Not much. It’s wintery, bone-chilling, but fortunately, legal theory can survive all temperatures.
[00:01:00] David: It warms you in the night like a fire in the fireplace. Nothing could be better than a legal theory podcast over the Christmas holidays. It really will make me excited.
[00:01:12] Sam: Absolutely. Roast your marshmallows while listening.
[00:01:17] David: I wouldn’t say--this is a very exciting one, but it’s not hot. This is a cool topic, I think, more than a hot topic if we’re getting McLuhan-y on the whole thing. But actually, is podcasting a hot or cold medium, Sam?
[00:01:34] Sam: I don’t know. Maybe we should add media studies to the ambit of this podcast.
[00:01:42] David: Who are we talking to today?
[00:01:44] Sam: We’re doing Karen Tani, and we have an emergent tradition of covering the Harvard Law Review foreword. I think we’ve done it at least two or three times, and she’s written the latest installment. It’s a fascinating exercise, and I think it’s a great episode.
[00:02:00] David: Yeah. It was a really, really, really fun conversation, and way more fun than many. It’s really a fun, fun, fun piece, and smart, and interesting, and exciting. So why don’t we get to it?
[00:02:15] Sam: Sounds good.
[00:02:27] Sam: All right, well, in our latest episode, our privilege is to have Karen Tani as our guest. It’s great to have you. Thanks for being here. Karen is the Seaman Family University Professor at Penn Carey Law, the law school of the University of Pennsylvania. And we’re here to discuss her Harvard Law Review foreword that dropped a few weeks ago, and it’s already making waves, including on this podcast. And it’s called “Curation, Narration, Erasure: Power and Possibility at the U.S. Supreme Court.” So Karen, thank you so much for doing this.
[00:03:07] Tani: Yeah. Thank you so much for having me. I’m a fan of the pod. I never imagined myself as a guest, so this is a really fun opportunity. I’ll say it also feels a little funny to be here talking about this particular article. To prepare for this, I actually reminded myself of some back issues of the, back episodes of the pod. And I remember you did one with Linda Greenhouse. It was two years ago, and she was talking about a book that was on the Roberts Court, I think of, Justice on the Brink, I think was the title. And she said to you at one point something to the effect of, I didn’t write this book for you. As in you two Yale smart guys were not really my intended audience. This is for your non-academic neighbor. This is for your mom. David, I think you said you actually gave the book to your mom. And so in thinking about my article, I wouldn’t put it in quite those terms, because I think I did think and expect that fellow legal academics would read it, but I also wanted law students to be able to read it, and Court-curious members of the public, and even my mom. And I think she did read it. So this kind of relates to what I did with the opportunity, so I’ll say a little bit more about that if that makes sense.
[00:04:12] David: So really quickly, before we get into talking about it, it is terrifically accessible in that regard. And I recommend to all of our listeners to pick it up. It is, as law review articles go, about as accessible as you can imagine. That you convinced your mother to read a law review article may be a signal career achievement, though. That’s really something. That’s a lot right there. [Off-beat applause.] So good show.
[00:04:34] Tani: I mean, I’m not sure that she actually read the whole thing, but I did have several family members say they at least started it. But I do, I mean, this actually relates to, if I should give a brief overview sense of what I did with it, and you can tell me how much to get into the nuts and bolts of the argument. But I think I took an approach to this article that was maybe like deliberately obtuse, given what the genre of the foreword has become. So if some listeners aren’t really familiar with like the Harvard Law Review Supreme Court foreword, I think it has become this thing where, you know, they invite a legal scholar to write it, it’s a tradition that dates back decades, and in modern practice, it has become a platform for people to usually write about like whatever big original idea that they happen to be working on. I’m a historian, I’ll just say, Sam, one thing you didn’t mention in your intro is that I’m actually jointly appointed now in the history department, I really do think of myself, where my value as a scholar is doing like deep archival research, and a lot of my writings come out of that place. It’s sort of funny to be asked to kind of respond in real time to a particular Supreme Court term, or write in that short window of time, kind of push out some new and original idea. So again, I think I took an approach that was like, maybe kind of countercultural and said, like, what if I treated it like an actual foreword, like, I looked at across the entire term and sort of reflected on it. And, you know, to be clear, I love the big forewords that advance the, you know, the big original idea, but that’s not really what I did here, which again, is kind of why it’s funny to be on like a big ideas podcast talking about something that to me is like a different, you know, it’s a different take on the genre.
[00:06:19] Sam: Well, you know, I greatly enjoyed it for all the reasons that you’ve already mentioned. It’s so fun to read, and it’s a great learning experience. I think there are big ideas in it, and, among other things, it does dramatize and humanize the work of the Court in exactly the way that you intended. But then you kind of bring some tools that you associate with our profession to bear on the present and the present work of the Court. And in particular, of course, you trifurcate the article into these big sections about your title words. And so that’s like a classificatory agenda minimally. And so let’s start there and just hear like, what are the categories in the title there? Curation, narration, erasure, what are those? And how do they help understand what’s going on at the Court these days?
[00:07:16] Tani: Yeah, that’s exactly right. So I chunk up the article in precisely those, through precisely those concepts. So I think curation for me is another way of getting at something that lots of scholars have actually written about, which is docket discretion. So the idea that the Court decides what it wants to decide, like not without limits, but significantly. This is interesting to me in part because for much of my career, I was not a Court watcher. I’ve been a law professor for a long time. But before writing this piece, I was kind of weirdly unaware of quite how much discretion the Court has, or how the discretion has grown over time. So I really wanted some facet of the article to be about the ability to decide what to decide or to set the agenda. And when I was thinking about like, what do I have in my toolkit that could help show that to the reader, I really liked the idea of curation. And to me, that that word is a little bit more evocative than a word like discretion. Because I think curation gets it to me, like the world-making power of these choices, as well as almost like their subliminal quality, like the--I like the idea of you hear curation, and you think about, oh, like going to a museum, or an archive, and we’re going to interact with what’s there. And we don’t necessarily think about the choices that have structured our experience, but behind the scenes, like someone has curated the menu, they have decided to make available a particular set of documents or artifacts or artistic objects, and they’ve arranged them in a particular way. And they’ve kept other things off the menu, right, and they’re inviting us to engage with these particular things, and from there, certain exercises of meaning-making become possible and others become less possible. So the idea was that I think the Supreme Court, you could say, is doing something broadly similar when it accepts particular petitions for certiorari, and it denies others, or when particular justices leave little breadcrumbs in opinions or oral arguments about the kinds of cases they want to hear. So that’s the idea of how they’re doing that work of curating, and then the article talks about what that actually looks like in this particular term. But that’s like the broad concept. Narration, I think, is a lot simpler. It’s what it sounds like. It’s this idea that the judges tell particular stories or amplify particular stories via their opinions, including stories I say about the Court itself as an institution. So here, I don’t think I’m saying anything that other scholars haven’t said. I’m just sort of identifying narrative themes across the term while also, I think, noting some big stories that we might have expected to see. Like if you’re a media consumer of the Court, you might have expected, for example, to see like a lot of stories about people going to the emergency room because of complicated pregnancies and not being able to get reproductive healthcare. Or you might have expected to see like a lot of narratives about the events of January 6th because after all, I think there are three cases on the docket that directly implicate those events. But instead, you see the Court narrating that kind of very briskly and bloodlessly. So the narrative section is both about narratives that the Court is putting out into the world and also ones where they’re being kind of quiet on. And then the erasure part of the article, this part is coming actually from a research question on my side about stuff I thought I might see in the cert petitions and I didn’t see. And so I wrote a section that was about like, how do I make sense of that weird research experience? And I think what it ends up being is kind of a commentary on what we miss actually when we do what the foreword invites, which is to look at the docket across like a single term but not think about it historically. So I think if you do that kind of pure horizontal across a single term, you won’t see types of claims that could in theory be part of the docket, and were once part of the docket, but are now not even making it into the cert petitions. So I make this point via social welfare cases, like cases involving public benefits. Those used to be a huge part of the docket. I’ve written about them in prior work, but now they comprise a tiny fraction. So this section, that final section is really kind of about like, what do we make sense of certain kinds of cases just being erased from the docket? Does that matter? And then what I hope this all adds up to cumulatively is a picture not just of a particular term but also the Court as an institution with like lots of power, maybe different tools at its disposal than we conventionally think about. And the point is like it’s doing a lot more than deciding cases.
[00:11:29] Sam: Amazing. So that resonates and we’ll just kind of follow your lead in proceeding through your categories. So first about curation, which is I think you really beautifully said, you’ve taken it as a kind of synonym for docket control. In other words, what cases are being adjudicated. So a couple of questions because really you could think of all of these categories, including that one, as part of narrative. To narrate anything, you choose some stuff to foreground and exclude others and that could be cases that you’re adjudicating, but that will also inevitably involve precedents that you’re remembering rather than forgetting and so forth. And so there’s always a canonizing element to any narrative and a de-canonizing and then there’s definitely erasure. So what’s maybe interesting among many other things about the curation category is not just that you’ve kind of separated it out, but you’re focused on docket control. So why? I mean, it’s kind of in the water right now with your star turn in the New York Times the other day featuring these other scholars who’ve also made a big deal of docket control, like our colleague Robert Post, prior guest on the podcast, and Steve Vladeck. So tell us what motivates that theory of curation that’s focusing, let’s say, narrowly on docket control rather than all the acts of inclusion that are being done inevitably in narrative.
[00:13:08] Tani: Yeah, I think for, to me, narrative misses a crucial step in meaning-making. When I think narrative, I’m thinking about stories that are available to be told, like the material, the raw material is there to tell those stories. And so I wanted to capture a part of a process that was about, like, what if certain stories are possible but the raw material sort of isn’t even there, and instead other material is there, and so certain stories will get told and other stories won’t be told. I really wanted to have some aspect of the piece that was about agenda-setting kind of in that way, right? Not just about kind of different interpretations of a single story, but like literally different human stories are available for consumption and others are just somewhere else. But your point about the Adam Liptak article, and it was such an honor actually to be cited alongside Robert Post, so I know has just done tremendous work on this topic, it’s really interesting to me why now, right? The history has been there for years, this 1925 Judges’ Bill that Robert has written about and that Adam emphasized, right? Like that’s something that other scholars have written about, but it sort of hasn’t broken through, it seems like. I mean, that’s what I took to be the point of Adam’s article. And so I think there’s something about this moment that is making it seem newsworthy. I think for me, something crucial that’s happened in the last several years, and you all have talked about this on the pod before, is there something different I think about having a conservative supermajority on the Court. Like I do think that allows the Court to do something different with its agenda-setting power. And I think specifically, it’s probably allowing the Court’s agenda to more clearly and obviously track the agenda of the conservative legal movement. But also all amidst these strong statements from the Court that it really is just calling balls and strikes, right? So there’s this kind of funny dissonance that I think is pulling this into view, even though it had been sort of in plain sight for a long time.
[00:15:12] David: I want to come back to exactly that point in a little bit, but I want to start with what the curation is. So the article talks about the idea of curating a story or curating a narrative about law and creating it, but also about specifically what stories they’re telling and what they’re not telling. It’s not just about the idea of curation, but about what’s being curated. And you particularly note, you kind of create this alternative docket, which is a fascinating, what else could the Court have decided? And you note that, you argue those cases deal with issues of what you call domination, whereas what the Court does is about or about other things. But I was a little confused about this. What about the opinions, those opinions is about domination and what is not about domination in these other contexts? So those cases involve, you talk about things about credit, about kind of things involving debt, that punishment for domestic violence. There seem like complicated policy questions to me that have merits on both sides like everything else. And the cases that the Court did decide deal with domination by one party all the time. What could be more about domination, domestic violence and guns, right? But that’s like about individual local power and about the state’s relation to it, but big business versus the little guy, big government versus the little guy, or homelessness in public space. All of them have elements of power relations between the parties. What the Court’s docket this term didn’t have too much to do with was debt or contracts. But most of your cases, even when you’re in your alternative docket, are about applications of federal law. They’re not like, you know, they’re not like private law or even the Contract Clause or something like that. So can you maybe just help me out? Like, what is it about the Court’s docket that was not about domination that your alternative docket was?
[00:16:50] Tani: Yeah, so I totally take the point about domination not being a clean category in the way that I use it. I borrowed the term from Sabeel Rahman. I’m a big fan of his work. I’m probably not using the word as precisely as he does. The cases that I pulled for the counterfactual docket, and to be clear kind of about what I did, I dipped into the cert petitions, I looked around, I wasn’t in any way being, sort of like trying to give a bird’s eye view of everything that was in that cert pool, I did kind of pull out themes that were interesting to me. And the cases that I pulled out what I see as the unifiers, these are people who are caught in these webs of like, extraction and profit-seeking, and they’re experiencing problems that are statistically very common, right? They’re mired in debt; because they’re mired in debt, they’re vulnerable to predatory behavior, or they don’t have enough money to afford decent housing, and they’re at the mercy of landlords, or their economic or immigration status is precarious, and employers are taking advantage of that. So I think that these types of cases are, they are to me, categorically different from like a small business feeling dominated by federal regulators or a local government feeling that its hands are tied in its ability to deal with homelessness, to give another example from the docket, or like a domestic violence victim who wants to preserve the government’s modest ability to disarm abusers. Like, yes, there’s domination threaded through all those fact patterns, but I do think I’m like trying to get at something different. I’m trying to pull out these like common experiences of people who are not wealthy, who are battling forces that many scholars and commentators have described as predatory and subordinating. So that’s like the first thing that I would say, but I think like, in my view, in the structure of the argument, I don’t think these cases have to cohere perfectly to make my point. So I think the larger point is like most Americans are not storming the U.S. Capitol or accepting gratuities for doling out government contracts, or not trying to buy bump stocks, or not trying to do any number of other things that Supreme Court devoted its resources to. And many Americans are facing the kind of issues for my counterfactual docket, which of course is not capturing perfectly every issue of like every ordinary person, but I think it’s capturing some big ones. So my point was to say, look, like these cases were available, and there was at least a plausible argument that they meet the Court’s criteria of certworthiness. I’ll just say one last thing, which I think this intersects in interesting ways with--so Justice Gorsuch has publicly suggested that the court’s shrinking docket is just a function of not enough certworthy appeals. I think he’s responding to calls from Steve Vladeck and others about the shrinking docket. And if he’s right, like that would legitimize the selection of cases that the Court took. And I think the broader point of my counterfactual docket section is just like, I think that’s not right. And I think we need to interrogate that and also ask some questions about like, who in broad strokes is benefiting from the Court’s allocation of its time and who is sort of not having even the opportunity.
[00:19:49] David: So that’s great. And this does highlight a lot what you bring up in your last bit about the public benefits cases declining as a member part of the docket. But I wonder a little bit about whether, like, is this harm to the parties who are not being part, prominent in the story, is not being on the Supreme Court’s docket bad on some level, either whether you like what the Court does or not, like, there are a lot of reasons why the Supreme Court might not take type of cases that are not related to how common daily they come up in society. Maybe the law is relatively clear, or maybe we want things to bubble up, or maybe the people, like the eye of Sauron has avoided them, and they should just thank goodness that they’re not getting, getting attention from like, for change, from other institutions of government isn’t necessarily a sign of that things are about to get better for you. It could be that we’re allocating resources away from you, right? So if Congress changes public benefit law, it could make it better for recipients, or it could make it worse. I don’t know. Hard to say. Depends on how you feel about what Congress. So why is the demotion in attention synonymous with a demotion in quality or concern for the, in any of the categories you’re talking about? So you could imagine the Court is telling a story about law, but it’s also like, actually changing things on the ground. Some question, relatedly, I know I’m blabbing on here, which is that maybe the problem is not, the Court not taking cases, but us, but the rest of us taking the Court’s docket as a synonym for what’s important. Maybe like, maybe the problem is us, not them.
[00:21:26] Tani: I do think the problem is us. I’ll circle back to that. But I do want to maybe just distinguish quickly between two sections of the paper just to clear up like what’s on the counterfactual docket section and what I’m doing with public benefits cases. So I think like, the counterfactual docket section, as I said, is kind of about these cases loosely clustered on the idea under the idea of domination point again, is to say, look at these cases that the court could have taken, it didn’t, they were in the petitions for certiorari, they’re rejected for reasons that we don’t know. And that’s really trying to buttress the larger point about, look, they’re selective in what they took. And I think this is, you know, illuminating some patterns in what they did take, illuminating patterns in what they didn’t take. And let’s ponder these choices. I’m trying to like not actually take a super strong view on like, they absolutely should have taken each of these cases and the world would be much better if they did. I think it’s more, it’s like a more modest version of that. I think like part of the point is like, we’re taught to imagine the Supreme Court is like the supreme giver of justice. And it’s to ask these questions about like, to whom is it giving justice. And then to your point, I think the giving of the justice has these spillover effects in terms of the motivations of lawyers and law professors and the attention of media and so on. And I do think like there’s something that seems to me problematic about certain things being lifted up and other things to my mind being kind of maybe not getting an amount of attention that would be helpful if in terms of like, we’re just talking about a media ecosystem or a law professor ecosystem. Public benefits cases, so these in my view are not part of that counterfactual docket because from what I could see, they really weren’t part of the certiorari pool at all, even though I think they are still visible to some extent in the lower courts. And then the public benefits cases were really the motivation for writing that third section, the erasure section of the paper, where I ponder basically like what happened to these cases which used to be such a big part of the docket. And I think like the erasure section, I think it fully accepts that like maybe for this population, there maybe aren’t as many like live legal questions. Like you could be totally right about just like what’s Congress doing and how is that translating into actual controversies. But the way that I deal with that is I kind of connect that reality to decisions made in the past, both by Congress and the courts to kind of diminish these claims, to get them off the docket, right, to suggest that over time these claims were made to go away. And I do think this section of the paper is probably the most kind of thinly sketched out in terms of the implications but I do think this has some unfortunate ripple effects. And for one, I think it affects how we would even talk about impoverished people. Like, do they come up in our news stories as homeless people who are plaguing local communities or instead might they come up as citizens who are entitled to a decent standard of living, right? Like contrast news headlines from today with news headlines in say like 1973. I think it probably affects how we talk about the administrative state. Is the administrative state just a regulator of business or like the overlord of public health, or does it provide life sustaining benefits to lots of people? This is not to say that the Supreme Court dictates what newspapers write about, but I think it affects it. I think it’s, surely it affects what we write about as law professors. So then I think back to your final point, yeah, I think this is actually a critique sort of ironically, right, because this is like a Supreme Court issue foreword. But I think it is actually a critique of the way that in legal academia, we let the Supreme Court’s agenda set ours.
[00:25:00] Sam: All right. So more where that came from, for sure. But let’s kind of proceed to the narrative section. But I really want to ask kind of my main question about all three sections as a way of doing so, which is to get you to talk about how the paper has an analytical agenda and how it has a normative or political agenda, because one thing someone could say is that, well, of course, there’s going to be narrative operations no matter who’s in power. And that’s true on courts. It’s true in amongst more open politicians and people are making choices and law is political and that’s what we learn by looking at the use of procedural rules about docket control or curation more generally and about narrative operations and silences. And that’s super illuminating when we look at how it’s being done. But then there’s another thread to the paper and to the general discourse about docket control, which is that like something is going wrong under the conservatives that wasn’t happening before even though the Judges’ Bill is old. And, you know, a lot of the latter two-thirds of the paper is motivated by your sense that like it would be better if there were different narratives and the people who are silenced or excluded were given more attention and love and help. So I guess I’m trying to understand in what way you’re concerned about like a general theory of studying law and introducing a way of thinking about law no matter what, and in which way this is kind of like in Steve Vladeck’s book, the sense is that, well, the way things used to be was normal and therefore like good, whereas the conservatives are doing something abnormal and bad.
[00:27:08] Tani: Yeah, I think, I’ll answer, I guess, that question in two ways. I do think part of what I’m doing in the article is offering a kind of analytical toolkit that you could apply to any iteration of the modern Supreme Court, and you could see something, right, you’d see something interesting and probably disturbing. Or, you know, you could do this for the Warren Court and probably come up with some really interesting findings. So I think part of the piece is pulling on a lot of other people’s research to say, like, you know, here’s a sort of structure for how you could think across a term and think about the work of this Court as an institution. Like, what does it want you to see? What does it not want you to see? We could have a conversation about that. But I think you’re asking something more about like, is there a kind of stronger critique of this particular Court? Maybe to that, I’ll just say, like, I think probably the impetus for writing the article in this way is because the way that the justices talk about the institution is so at odds with the exercise that I’ve suggested. Like, I think there’s a way in which they describe what they’re doing. We could talk about like the classic would be like the balls and strikes metaphor, but that’s just one. They’re constantly talking about judicial modesty and neutrality. They’re adopting these very formalistic doctrines, which give the appearance that, oh, our hands are tied and we’re just kind of looking, we’re putting things in these predetermined boxes and just kind of following where then the, this formalist doctrine leads us. So I think there’s something to me that’s also interesting about like saying, OK, if like that’s the way that you’re going to present yourself, it feels more important to do this particular exercise that I’m suggesting.
[00:28:54] Sam: I love that. I mean, I think that’s totally persuasive because it can be that like everyone and everyone in law is, in a sense, participating in some kind of, I don’t know, let’s call it lie that suppresses the politics in law. But then some people are doing so with abandon and enthusiasm, and the kind of neoformalism you see at the court these days is just much, much more kind of glaring in that regard. So totally convincing. Could you reframe what you just said, given the really fascinating section you have on a prior HLR foreword, you know, by an old Yale professor, Robert Cover, because that’s just a super well-known entry in this genre. And you kind of say some really interesting things about what’s enduring in it and what was time-bound and what we can see now from the perspective of all these decades later.
[00:29:57] Tani: Yeah, I’d be happy to, with a little bit of trepidation. I mean, I confess that I’ve read this article multiple times, there are parts of it I still find completely impenetrable, but I think it’s a classic for a reason, which is it conveys like, number one, I think like the awesome world-shaping power of narrative. And I think it’s still beautifully illustrates this idea of like a plurality of normative orders that exist at any given moment. And I think both of those points have very little to do with the Supreme Court. So to the extent I’m in any way critiquing the article, I think it is to just make this point that the parts that are about the court, like I think they still hold up in the context of like you’re writing about the Burger Court and this is what the Burger Court did. But I think like that Court in his writing comes off as to me as kind of like anemic. So in the Bob Jones University case, that’s one of Cover’s key examples, to my reading, he’s basically saying, OK, the Court made a decision. There was a narrative behind it. There was like a lack of commitment. And so as a narrative producer, I think the Court looks pretty weak in that telling. You don’t get the sense that it really did much damage to competing narratives. So that was my take. So it’s sort of interesting, again, to kind of read this landmark article. If I want to write something about narrative, obviously I’m going to engage with Cover and what’s different now. So I think the conservative majority on the Roberts Court, like by contrast to the Burger Court, I think seems much more, number one, committed to a particular vision. I think there’s a coherence to the vision that is probably different, again, having to do with personnel and that kind of conservative supermajority and the many similarities in their training and backgrounds. And then I think, number two, it’s adopted interpretive tools that I do think make its narratives harder to contest that make them more powerful, at least within legal spaces. So I really like, Jamal Greene has this article on originalism, I’m forgetting the title, but in it, he describes originalism as radically jurispathic. And he’s actually, that’s Bob Cover’s term, but he’s applying it to this changed context. And I think he’s right, his point is like originalism, it kills competing narratives more effectively than other styles of interpretation. So none of this is to say that alternative narratives don’t exist or can’t flower elsewhere. But I think the point is that within legal argument, originalism has this way of kind of narrowing the field of possibility. So I think that’s my intersection with Cover. And I don’t think, to be clear, I don’t think the ultimate takeaway is at odds with Cover. I think I’m actually reinforcing in broad strokes the call to legal scholars to pay attention to narrative, to believe that narrative does construct normative orders and to say, like, we should kind of cultivate this skill rather than treating it as kind of a fad and legal scholarship, which I think sometimes when people say like law narrative, they think, oh, that’s like a fad from some decades ago. So it’s sort of a call for return.
[00:32:42] David: So I will let Sam go back to talking about, and you talk about, narrative, you humanities people love these stories. No, I’m more of a social scientist. And I wanted to ask a question, the challenge remains, no matter on the method, and the basic way I would understand that part of the article would be to say there’s some something at odds between claims of a mechanistic jurisprudence. The idea that like there’s less judgment involved in judging and the Supreme Court’s extraordinary power to both choose the cases and therefore in behaving ways that are non-mechanistic and also to shape future outcomes through the stories, the opinions they write. So I wondered a little bit, I mean, the article doesn’t do too much in policy terms, but I was wondering a little bit about what you thought of policy because you could imagine institutional tools that were designed to reduce the Supreme Court’s ability to use the Supreme Court’s discretion that would be at odds with this mechanistic jurisprudence. You could imagine increasing mandatory jurisdiction, right? You could, we talk, you talked about the 25 judges, but like changing the power of certiorari. You could imagine something where someone else can choose the Court’s docket. So like, you know, if 50 percent of appeals court judges vote a case up to the Supreme Court has to decide it, you could imagine getting rid of opinions. So there’s a lot of criticism of the shadow docket and we’ve mentioned Steve Vladeck before, but like the part of that criticism is that the Supreme Court doesn’t explain itself. Well, maybe explaining itself is exactly what’s bad, right? So the Congress doesn’t write an opinion when it writes a law. It writes a law, which is like a decision, but it doesn’t, you know, like write a long description and the president, you know, that’s not the math. And so maybe the challenge is the Supreme Court has too much narrative-shaping power or policy-shaping power, either on from its from its curator-y powers or through its explanatory responsibilities or methods. So what do you think? What should, you know, a straightforward social scientist not involved in all the storytelling stuff take from this? Like, would you support reforms like that?
[00:34:51] Tani: OK, as a non-social scientist, I’ll maybe do my best to think through some of this. So I think opinions are better than no opinions, in my view, but maybe there needs to be a broader education on how to read opinions in ways that could slice through the legal argumentation and expose some of the other choices at work. I mean, I think that’s a big part of this article is just to maybe read opinions less for the legal results and more to expose some of these other choices. So I’m kind of thinking on my feet here, but you could imagine newspapers, who I’ve seen them publish annotated versions of like high profile indictments and such. It would be really interesting to see more of that done for Supreme Court opinions to like sort of highlight areas in which a choice was made and like explain that with easily accessible context. So that’s one thought about opinions. On the idea of bringing back some amount of mandatory jurisdiction, I find that really interesting. And it seems to have gotten much less play than some other Court reform ideas. So I’d actually be interested to know whether that was meaningfully on the table or whether that’s something new that people are thinking about in the wake of, you know, Robert Post’s work and others’. But I do, like I’m very taken with Robert’s work on Taft and the Judges’ Bill of 1925. Like I think in a recent paper, he calls that bill a virtual emancipation proclamation for the Supreme Court. Like that’s you know, it’s just it gets really powerfully at the idea that like a big choice was made here and it’s actually a choice that could be reconsidered. I mean, I think the devil is probably in the details in terms of how effective could be some reworking of mandatory jurisdiction. I think there could be some good consequences in forcing the Court to take cases that it otherwise would not take. I think that could lead to workload problems. But I think if the workload feels too onerous, that in turn opens up some other possibilities, maybe then there’s further rationale for reimagining the institution. So those are my off the cuff attempts to satisfy the social scientist.
[00:36:56] Sam: I wasn’t going to go here, but could you maybe address why not go bolder? Because if you take, as I do, your finding to be a humanistic one that law is political and whoever controls it will be making political choices, which are in part narrative choices, curation and all the rest, then we should, as democrats, want those to be out in the open no matter how justified an opinion is or how those cases are set up for decision. But you don’t go there. So is that because you think that like only courts once reclaimed for the proper narratives can protect the vulnerable by adjudicating public benefits cases like justly? Is that your basic politics and therefore you don’t kind of get rowdy with Court reform?
[00:37:58] Tani: So how radical of a proposal are you putting on the table, not just like the idea of transparency, but are you suggesting--
[00:38:03] Sam: Oh, close it. I mean, you know, David introduced some other, you know, lesser remedies. But--
[00:38:08] David: Sam’s on his bullshit again, basically.
[00:38:13] Sam: Again, I wasn’t going to go here, but like where, you know, I’m just curious, like is it again like a kind of abnormalizing article about the current Supreme Court that would like to see the institution reclaimed for liberalism, as you would like liberalism to behave, you know, for the victims?
[00:38:32] Tani: I think I’m going to answer here in a little bit of an oblique way, but it is a sincere effort. So I think like my strength as a scholar probably pretty closely track the strengths of my discipline. Like I think we’re good at doing historical detective work that helps us better understand the present. I think we’re good at making sense of aspects of the past that might today seem really puzzling. I think, Sam, you’re probably the exceptional historian in your ability to engage like this style of question. I think that I personally like lack the imagination for it, which is actually exactly how I end my article, because I did feel that there is going to be this like, you know, I’ve just presented these in three sections, they are pushing towards like, OK, what’s next? So I have this coda section that to me is really about actually like different types of scholars. So just as like a lead-in to this for various reasons, I’ve spent a lot of time this past year, like reading and thinking about faith. And I became very taken with some old work by a theologian named Walter Brueggemann. People may know his, I think the book that I read and liked is called The Prophetic Imagination. And it’s basically about Old Testament prophets and what they do, like what their role is. And the simplified version of the argument is that prophets exist in relationship to a different biblical figure, which is like the pharaoh or the king. And he says, OK, what the king and the pharaoh are trying to do, they’re trying to impose one vision on the people and they’re trying to make every other vision unthinkable because that’s what they need to do to stay in power. And the role of the prophet, by contrast, is to just keep like conjuring up alternatives, whether that’s like forcing people to remember an older story that they’ve forgotten or whether that’s dreaming up some totally wild vision. So this coda to the article actually tries to translate that in some ways to legal scholarship and to suggest what I see as my own place in it. So I think I’m pretty good at describing the king and denaturalizing the king’s vision. I actually don’t think I’m like a visionary person. I just don’t think that’s my particular gift. And I think other people are good at it. Sam, I think you’re good at it. So that’s like a dodge, but probably one that’s more worth your listeners time than anything else I could say in response to that question, which is a good one.
[00:40:42] Sam: Well, it’s an amazing answer. And it’s worth noting that, you know, prophets are generally dismissed as crackpots, and rightly so, and you totally avoid that risk. So--
[00:40:53] David: Most of them are!
[00:40:55] Sam: Most of them are. I’m with you. So on our common field, I mean, I want to ask about that because in a way you’ve said that’s kind of not just like methodologically how you approach your task here, but in a sense, existentially, it’s, your posture is to be a historian who’s barred from certain kind of conduct in the world. So I guess my question about what it means to be a historian is twofold. I mean, one is that, well, the operations you spotlight in this piece seem more naturally to be, you know, and analyzed by other parts of the humanities, like art historians are the people who study curation and literary theorists study narrative and erasure. But you say historians are really the people, or at least in your case, you’ve learned a lot from our discipline about how to study those things. And then there’s a related question, which is, you know, there’s critiques of history, and it’s that historians share the same myth that people harbor about the law, that there’s truth out there rather than just unending politics. And so wouldn’t history also have the risk of in a way disabling us from kind of fighting these like curatorial and narrative acts? Because ultimately, all you can say is that, well, history teaches that there’s some other truth, allegedly, that courts as political institutions are missing in claiming to be objective.
[00:42:49] Tani: Yeah, those are great questions. The first one, so I think it’s totally possible that somebody who is trained in literary studies or art history would actually do more effectively what I try to do in the article. It happens like, I’m a historian, is the short answer. And I kind of discerned these moves from reading history and archival studies. And, you know, I think I think they do help make the points that I want to make. But I totally take the point that maybe others have made them better in other disciplines. And there could be more to draw upon. I do think, though, that there is something about historians and archival work and the metaphor of the archive that feels helpful to me. I do think it makes really concrete like the idea that what seems natural and like just the way things are might actually be arbitrary or might be a construction. And then from this arbitrary or constructed set, you get these enormously consequential interpretations that are going to emerge to me, like history makes that clear in a way that I’m not I’m not sure would be quite as clear from other disciplines. I think history is also attractive for me for another reason. And that’s because the Court seems to be leaning so heavily on it. As a historian, I didn’t want to write one more article that was going to critique the court’s use of history, like maybe when the Harvard Law Review invited me, that’s what they thought they were going to get. But I think like anyone in our field knows, like that’s been done and done and done. But I really liked the idea of using the insights of the discipline to critique a Court that itself is leaning very heavily on the discipline. And that actually kind of relates to your, the second part of your question. And I guess I, so I hear what you’re saying about historians being almost like in like a colluding relationship here with lawyers and the idea that it’s, you know, it’s a myth that there actually is an objective truth. I guess I come at it a little differently. I think at the time that I came up in graduate school, it seemed like we were sort of past that in some ways, like I don’t think anybody that I trained with really believes that there is some like single objective, neutral account of the past. I think when I came up, it was much more this idea that like, there are going to be different interpretations and a lot of it depends on your vantage point and the questions that you’re asking and the sources that are available and the sources that you’re choosing to look at. So for me, I think I maybe see the discipline a little bit differently. But I think this does actually intersect in interesting ways with like this question of historians and lawyers. I’m sure you’ve, I think you’ve talked about this a lot with Jack Balkin and probably others. But I actually think the discipline is in for some kind of reckoning because I do think a lot of what’s happening with historians and their involvement with the Courts like I’m thinking, you know, the Brennan Center now has this like Historians Council, lots of people are doing historians’ amicus brief. I actually do think that’s at odds with what where the field is from my, from my view, from my training.
[00:45:40] Sam: I love that answer because I totally agree with you that in a way as a discipline, though I’m a liberal as well, there’s a sense that like historians can be tempted to claim that, like the law, if you study it from the perspective of history, just is liberal and the conservatives are getting it history wrong. Whereas we know, I mean, we’ve totally gotten beyond some old objectivism in history. And we know as historians that like what critical legal studies taught about law is true of history. It’s just all struggle. And that’s what’s brilliant about your piece, which is that it kind of brings that, let’s say, newfound insight of historians to lawyers who are still holding out and saying, look at how much political choice there is. So that’s brilliant. I just think that, you know, there are, I think I’ve noticed some lawyers kind of fighting back against these kinds of claims and saying, well, what historians don’t know is that law is about authority and constituting it, and we know that in ways that historians could never grasp. I don’t know if you care to comment on that sort of line of argument.
[00:47:01] Tani: Not sure I have much original to add. I think I know what you’re referring to, which is this idea maybe that like lawyers when they use history might say, you might think we’re doing history, but we’re doing something that’s law and that’s different. And you just sort of have to accept that. I don’t think I have anything original to say other than that I maybe don’t think that’s, I don’t think that’s true. I don’t think that those things are different. And again, I’ll maybe repeat the point that I think it is tempting, and Sam, I think you’ve written about this in a post that I find very persuasive on, it was on liberal originalism, this idea that like historians get, I think, tempted to play that game actually, and to sort of say, to buy into something that I don’t think we believe as a discipline, which is that there is actually one sort of objective truth that it’s going to happen to map on to liberal preferences as to what the Constitution means.
[00:47:56] David: So I have one last question about the kind of maybe what your article tells the Court from the inside, from the internal perspective, like or as advice rather than as critique or as tool of understanding. And so my question is like, if one of the main roles of the court is shaping a narrative about law, what does that tell judges, justices, or maybe advocates to do with their internal perspective? So for instance, I’ll just say, my friend David Fontana has an article where he praises Justice Sotomayor for writing opinions that are aimed at the front pages, not at the legal elite. And that’s a way of saying you should tell your story in different terms and the point is narrative shaping, maybe you shouldn’t work through mediated things. And so other justices do internal strategies and the goal is to convince elites that they’re right, or whatever it is. But my question is what do you think your narrative, that kind of analysis of the years docket is narrative suggests about how the court should go about their curative and narrative work?
[00:49:05] Tani: I’ll first say that I think that others have probably thought about this more deeply and creatively than I have. So I’ll start maybe by referring to--Lani Guinier has written about dissenting opinions as a form of demosprudence. I find that work compelling. To prepare to write this foreword, I read a lot of older forewords and hers on dissent and demosprudence I found really insightful. So she’s basically arguing that powerful dissents can engage ordinary people in like, I think she uses the word jumpstart, you’re going to jumpstart a process of democratic accountability. So I think there’s a lot of value there. I mean, Sam, you have an op-ed with Ryan Doerfler from a few years ago, where you had some lessons for dissenting justices, I think where you said--
[00:49:40] Sam: That’s true.
[00:49:41] Tani: The subtitle of the piece, I looked it up, was dissent with democracy in mind. And I think the idea there is to dissenters should go beyond what might be actually very compelling, internalist legal arguments, and actually plead for external constraints on the Court. I’d actually be curious, I know you’re not being interviewed, Sam, but I’d be curious whether you would write the same thing today in the sense that like Sotomayor did actually invoke democracy quite strongly and clearly in her Trump v. United States dissent. And I think for some people, that was very powerful, but I think other people totally ridiculed for that and it came off to some people as like an alarmist rhetorical flourish. So open question.
[00:50:19] Sam: Well, you know, it’s part of the debate about whether the resistance worked, because in a certain way, you know, the liberal justices have embraced democracy in the form of like hashtag our democracy. I think what Ryan and I were trying to say is that like, democracy requires, like liberals to call out the power moves of the Court as an institution, which to the best of my knowledge, the liberals on the Court haven’t yet done. But you know, it’s an open debate about what democracy requires of the justices. Like a lot of my colleagues would say, it requires them to reach liberal decisions or protest when they’re not reached.
[00:51:02] David: Or, let me throw out another possibility, which is maybe their dissents just don’t matter that much. That nobody reads them, they only get cited, read, get discussed in a few newspapers that nobody reads anymore. That maybe the narrative shaping of the Court for the public is pretty limited, at least in terms of its of its written material. So maybe the opinions are less important than law professors would like to believe.
[00:51:29] Tani: I mean, I think legal historians would probably say that there are lots of classic dissents that we go back and look at and with the distance of time seem very important. There’s this idea that dissenters might be writing for the so-called court of history. I think that could be compelling. But maybe what I would say, like just vis-à-vis this particular article, I think it’s actually a tough question, because I don’t think the article, I didn’t mean for the article to imply that in any way, like the justices are going to save us through like, their particular rhetorical choices. I think what I was trying to do was actually to say to the reader, like, look at what they’re doing and look not just at the results, but look at the vision they’ve crafted for us and look at how they did it, like look at the process by which they did it, and look at what they hid from us along the way. So I could imagine a justice like might want to join me in doing this kind of exposure work, but I suspect that they wouldn’t want to, so it makes it kind of just a funny, a funny question.
[00:52:23] David: Or maybe they will take it and say, great, I should be more aggressive and hiding things now and now I know what I’m doing. I should take this and take it on and I should like really work and making my opinions really clear about telling the stories I want to tell and not the ones I don’t want to tell. Thank you. Thank you for helping me make the public less clear about our authority. What a guide. On that, I just want to say thank you. This was awesome. This was so fun. The foreword is so fun. And this was a really, really fascinating conversation. So thank you so much for coming on the pod.
[00:52:57] Tani: Yeah, thank you so much for having me.
[00:52:59] Sam: Thank you.