Gedicks, Frederick Mark, Working Without a Net: Supreme Court Decision Making as Performance (February 17, 2017). BYU Law Research Paper No. 17-09. Available at SSRN: https://ssrn.com/abstract=2919682

“A Depression-era Justice once suggested that in constitutional challenges the Supreme Court simply compares government action to the Constitution and decides “whether the latter squares with the former.” Chief Justice Roberts more prosaically compared the Justices to baseball umpires. Both expressed the conventional view that judges are and properly should be helpless to alter the outcomes dictated by law writ large. This is mostly false humility. Judges are nothing so much as illusionists, and their opinions sleights of hand which obscure that judges are not bound by the law in the powerful sense they suggest, but participate in creating what they purport merely to apply. This is especially the case in the Supreme Court, from which there is no appeal. The Justices perform constitutional law, and their opinions are the records of these performances. Performance theory supplies a better means of analyzing and criticizing Supreme Court decisions than ubiquitous attacks on judicial integrity. The idea that judges can uncover the law untainted by justice, social need, personal preference, or other judicial taboos rests on a largely rejected metaphysics that nonetheless retains a powerful cultural hold. The Court has its precedents, but they have no connection to a pre-existing natural order, and often not even to a determinate text. The Court’s readings of its precedents form a tradition that is rarely so fixed as to yield only one possible result in a new case. This makes the Court’s constitutional decision making the purest of performances — holdings and citations are “iterated,” shorn from their original contexts and dropped into new ones, creating new and surprising principles that masquerade as old and established. It is banal and unhelpful to call this dishonest. The Justices cannot admit their performative role because it cannot be reconciled with still-powerful higher-law and rule-of-law myths. If law does not exist outside the case in which the judge applies it, if it is not a stable premise of judicial decision making but a function of the judge and the situation, how are we governed by “law rather than men”? The necessity of performing constitutional law stems from the general absence of an underlying text that can constrain that performance; there are, instead, multiple indeterminate texts, which makes performance inevitable. The Justices are always working without a net, performing constitutional law in opinions with nothing underneath. Sometimes they pull off a convincing performance, but sometimes they don’t. It’s important to know the difference.”