We’ve now been collectively living in a sanewashed political and legal landscape for nearly a year. For that, we have the Roberts Court to thank.
Relying on judicial sanewashing, the Roberts Court has eroded due process protections, political accountability, and civil rights, while simultaneously consolidating power for itself, corporations, gun owners, Christian conservatives, and state officials who owe their political influence to heavily gerrymandered districts. All this has been accomplished while the Roberts Court has sought to present itself as a neutral, nonpartisan institution, free from corporate interests and policy preferences and guided solely by constitutional and democratic principles. As the Roberts Court has transformed into a conservative policymaking body, it has maintained that it is merely fulfilling its constitutional mandate.
According to the sanewashed facts in Shelby County, the VRA was no longer necessary because racially discriminatory voting practices were “rare” and the remaining sections of the statute would be sufficient to protect minority voting rights. In the decade since the Court offered those tepid reassurances, states formerly subject to the VRA’s preclearance requirements have passed an avalanche of discriminatory voter suppression laws as the Roberts Court has simultaneously sought to further weaken the law. The Court is now prepared to strike down the remaining vestiges of the statute it promised would remain in place to ensure voting rights remained protected.
In recent months, the Roberts Court has adopted a new sanewashing strategy—the shadow docket. The Supreme Court, traditionally a court of last review, has increasingly decided significant legal questions on its shadow docket, boldly exercising its discretionary review power and circumventing the typical judicial process. The shadow docket, which is quickly becoming one of the Roberts Court’s preferred sanewashing forums, has generated a glut of unexplained rulings, decided without the benefit of hearing the full merits of the case and with enormous practical and legal consequences. On the shadow docket, the Roberts Court has inserted itself into high-stakes legal challenges against the Trump administration, sanewashing and mischaracterizing lower court rulings preventing the administration’s lawless conduct as “emergencies” to justify intervening on the president’s behalf.
The shadow docket is by no means the only evidence of the Roberts Court’s systemic sanewashing. Stare decisis—a guiding legal principle requiring courts to honor prior judicial decisions involving the same or similar issues to allow for stability under the law—has been all but abandoned by the Roberts Court, except where it proves convenient.
Likewise, the Court’s promised fidelity to separation of powers principles and judicial restraint increasingly present as little more than lip service.
The sanewashing techniques employed by the Roberts Court to distort the law have been varied, and often used in conjunction with one another. In some instances, as when the Court upended a half a century of constitutional protections for abortion rights, the Court has defended overruling precedent by describing earlier decisions as “egregiously wrong and on a collision course with the Constitution from the day it was decided,” drawing false comparisons to discredited cases with limited parallels.
Often, while excoriating earlier decisions and replacing judicial and legislative judgment with its own personal precedent, the Roberts Court has engaged in perhaps the most performative sanewashing practice—claiming to be exercising “judicial humility” that predecessor Courts supposedly lacked.
As the Roberts Court has sought to sanewash dubious legal theories, whitewash facts and history, and mansplain health care so as to package its decisions as sound and sensible, sanewashing has arguably become the dominant methodology for constitutional and statutory interpretation by the Roberts Court. The Roberts Court has legitimized anti-democratic legal theories and advanced a biased, ahistorical interpretation of the Constitution through the sanewashing of law and fact, distorting democratic norms while insisting that it is simply following judicial tradition. The extent and magnitude of the effects of judicial sanewashing are now on full display, threatening to corrupt our democratic system and shared sense of reality.
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