Bonus 236: A Term of Self-Inflicted Wounds
The Supreme Court has had numerous opportunities during the October 2025 Term to act (and appear to be acting) *above* politics. The real theme of the term may be how many of those it squandered.
Within minutes of the Supreme Court handing down the birthright citizenship ruling on Tuesday and rising for its summer recess, its defenders were pointing to that decision (alongside the late-arriving mail-in ballots ruling on Monday and the tariffs ruling from February) as decisive proof that the Court really is “above politics,” and that criticisms of the justices for behaving more like politicians in robes than like judges are thus unfair. For a particularly thoughtful version of this claim, see Professor Will Baude’s opening response to the latest New York Times written roundtable about the Court with Baude, Professor Kate Shaw, and me.
In that roundtable, I already offered one of the two major arguments against this thesis—that it’s an assessment of the numerator without regard to the denominator, and that a full account of the Court’s behavior throughout OT2025 suggests that the Court behaved even more politically during the current term than during even the previous (highly politicized) one. Just to take one of many data points, last term (OT2024), there were six rulings in argued cases in which all six Republican-appointed justices were in the majority and all three of the Democratic appointees were in dissent (along with a slew of such rulings on the emergency docket). This term, there were … 13. (Along with two 6-3 summary reversals and 10 rulings on the emergency docket from which the three Democratic appointees all dissented.)
Today’s bonus issue addresses the flip side of that coin. In particular, below the fold, I identify four different moments in which the justices could have acted in ways to specifically defuse charges of political behavior—and opted instead to lean all the way in. As much as end-of-term narratives focus on what the Court did, and on the takeaways from individual rulings, consider today’s post an attempt to identify opportunities that the Court missed, as well. At least in the examples discussed below, by opting for the outcome that made the Court look more transparently political, the Court inflicted a series of (unnecessary) credibility wounds on itself.
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