Bonus 262: “One First” Turns Four(!?!)

Four years in, some reflections on the purposes and limits of any newsletter—but especially this one.

There’s an old saw about the judge who “knows they got it right” when neither side is happy with their ruling. I’ve always hated that line. Among other things, it shifts the conversation away from what the judge actually did; a crazy ruling that pisses everybody off isn’t right—it’s just crazy.

I realize that this is a strange point with which to begin a post celebrating the anniversary of this newsletter, which Karen and I launched on November 11, 2022—four(!!) years ago yesterday. But I’ve been thinking about the “everyone is mad” phenomenon a lot lately, especially in the context of public discourse about the Supreme Court—its rulings, its behavior, and whether/how it should be reformed.

When we started “One First,” the goal was never to tell anyone what to think about the Supreme Court. It was to help folks understand the Court a bit better than they did before—how it actually works, why it does what it does, and what’s really at stake in the legal questions swirling around it. (Our very first substantive post was about the history of certiorari.) I’ll be the first to admit that this isn’t the sexiest mission statement. It’s not exactly a recipe for clickbait. But it’s the only reason it ever made sense to do this—to try to add value that wasn’t already being provided elsewhere.

A big part of the impetus (besides Elon’s acquisition of Twitter) was my mounting frustratio with the shape and scope of so much public discourse about the Supreme Court. Too much of the conversation treated the Court as little more than the sum of its merits decisions, where the Court was “good” or “bad” depending entirely on whether the observer liked the bottom lines or not. (This was especially acute given that 2022 was the year of Dobbs, Bruen, the ascendance of the “major questions doctrine,” and more.) On that view, not only does every conversation about the Court end up reducing us to Sharks and Jets, but every feature of the discourse becomes transactional—in service of (or in opposition to) those outcomes, and nothing more.

That approach necessarily missed all kinds of massive shifts in the Court’s institutional behavior that were already well under way, on everything from the rise of the emergency docket and certiorari before judgment to the collapse of the merits docket to the justices’ personal behavior off of the bench. All of that, as the last few years have driven home, matter at least as much as which way the Court rules, because they shape how it rules—and what, if anything, the rest of us can do about it.

That’s what brings me back to the old saw. In a world in which the Court is viewed principally as a collection of outcomes, then it is virtually inevitable that we will judge it (and those who write about it) almost entirely by reference to whose ox is being gored. But if you think of the Court as an institution, the questions change. They become questions about power, process, and constraint—questions on which reasonable people can (and do) disagree without having to assume that somewhere between three and six justices are regularly acting in bad faith.

Four years later, and nine days after the election, the thing that strikes me most is how far the conversation has moved. Folks who wouldn’t have recognized the phrase “shadow docket” in 2022 now argue about the Court’s emergency orders over dinner. (Sorry, Thanksgiving hosts.) And in lots of ways big and small, the discourse has moved beyond whether the Court got a particular case right or wrong to what kind of institutional role the Court is playing, what kind of role it ought to play, and what Congress can and should do to bridge the gap between the former and the latter. And with the very real prospect that Court reform will be on the agenda when the new Congress convenes in January, the stakes of this conversational shift are getting larger by the day.

On the whole, my own view is that this shift in our discourse is a very good thing—whether or not this newsletter has played any part in it. It has also, for better or worse, raised the temperature. When the question is whether to expand the Court, or impose term limits, or claw back some of the Court’s power over its own docket, people are going to disagree—sharply, and, I assume, usually in good faith. As you’ve no doubt figured out by now, I have my own views on many of these questions, some of which I hold pretty strongly. And plenty of you disagree with them (oh boy, do you), as you should. The point of this newsletter has never been to get everyone to agree with me; I’m a father of daughters, so I know better. Rather, it’s been to try to get to a place where we are disagreeing about the same thing—and about what the Court (and Congress) is actually doing, versus some caricature, whether of a deeply noble and consistently principled Court or of an irredeemably wicked and corrupt Court. The reality, as is so often the case, is a fair bit more complicated.

Which brings me to why, at least from where I sit, everyone seems to be so mad. Regular readers know that I get my fair share of incoming fire, whether on Substack, on social media, or in my inbox. But the criticism I receive tends to come from two very different sources that, in a strange and unintended way, increasingly appear (to me, at least) as mirror images of each other.

On one side (perhaps best exemplified on Twitter) are those who view any criticism of the Court as a not-so-subtle attempt to undermine the institution. To those who start from this baseline, critics pointing out that the justices are increasingly resolving enormously consequential disputes through unexplained emergency orders isn’t analysis; it’s an attack. It doesn’t seem to matter how carefully the criticism is grounded in what the Court has actually done (what the kids call “receipts”), or how much of it is aimed at protecting the Court’s authority over the long term, or how consistently the same criticism is offered across results with different partisan valences. To this camp, to question the Court is, by definition, to seek to delegitimize it, never mind how reasonable or well-defended the criticisms may be.

On the other side—and this group is bigger, and a lot louder, at least in my inbox—are those who view anyone who doesn’t support radical reform of the Supreme Court, starting (but not ending) with immediate expansion, as a collaborator. Here, too, the record doesn’t seem to count for much. I don’t imagine that regular readers of this newsletter need any persuading that I’m pretty critical of the current Court, and of many of the justices, individually. And I’ve written at quite a bit of length (sorry) about the myriad ways Congress could (and should!) rein the Court in. But because I have serious reservations about the potential long-term costs of adding four new seats to the Court in 2029, I’ve been unmasked as an apologist for the Court—if not worse.

What these two camps have in common is that neither one is really arguing about the substance. Both, I think, are symptoms of the same problem we started this newsletter to push back against: thinking about the Court as a team rather than as an institution. If the Court is viewed as little more than the sum of its rulings, then defending it necessarily means defending its outcomes—and criticizing it means criticizing the justices who are responsible for those outcomes. In this framework, there’s no room for the possibility that an institution can be worth preserving even when it’s behaving badly—or that it can be behaving badly even though it’s worth preserving. (That, for better or worse, is pretty much exactly where I am—and it’s one of the central prescriptive arguments of my forthcoming book.) Instead, we have replaced whether “this argument is right” for “what side is this person on?” Once you’ve answered that question, whether they are right (or wrong) is implied.

To go back to where I started, that’s just a new variation on the old saw; it’s measuring an argument by who it makes angry, rather than by what it actually says. But getting yelled at from multiple directions doesn’t make an argument right any more than it makes a ruling right; the only way to know whether an argument holds up is to actually engage with it.

That’s why I want to take a moment to say thank you to the many, many folks who do. To those of you who write in to tell me that I’ve gotten something wrong, and then explain why; to those who use the comments to make the strongest version of the argument I’m resisting (often better than I could have made it myself); and to those who simply read carefully, think hard, and land somewhere different from where I do: thank you. Some of the best posts I’ve written in the last four years came out of pushback from readers who knew something I didn’t, or who saw a problem with my argument that I had missed. I may not always agree with you. But I’m grateful to you for raising the level of the debate.

I also want to thank the people who make this possible, both in front of and behind the scenes. That starts with the paid subscribers—whose support is why most of the “One First” content we produce can stay free for everyone else, and who have stuck with us through four years of emergency applications, end-of-Term opinion dumps, and more bonus posts than I care to count (okay—262). I have no idea whether we’ve struck the right balance between free content and paid content, but I do know that the latter enables the former in ways that I hope everyone can appreciate. And so if you’re not already a paid subscriber but are willing and able to become one, here’s the one place today where I’ll ask:

My thanks also extend to the cast of stellar research assistants who keep me on my toes and run down my ridiculous requests at all times of the day (and night)—currently starring Abby Liman, Ava Singh, and Mackenzie Webb. Without them, far more typos would make it to your inbox, and far fewer posts would make it out at all. I’m also tremendously fortunate to be able to teach at a law school that views public-facing work as a central part of our mission, rather than a distraction to be tolerated.

But I’m most lucky (blessed, really) to have a supportive family, who have been as patient as one could reasonably expect with regard to how often “I just need to finish this one thing” turns into another hour (or three). At the heart of all of that is Karen, who has been my partner on this platform from the very first day—and whose judgment, good humor, and willingness to tell me when something isn’t working have shaped this newsletter far more than most of you will ever know. Yesterday may have been the fourth anniversary of this newsletter, but today is the fifteenth anniversary of our marriage. Happy anniversary, Karen (no, this isn’t your present).

I could close with an attempted list of rules for “how to disagree well,” but most of you are already better at it than I am, and I suspect that’s not what an anniversary post is for. So instead, I want to end on a more personal note—about why this is how I want to spend so much of my time.

Twenty years ago this past spring, I was a very junior law professor at the University of Miami (literally in my first year of teaching) when the university’s janitors—who worked for an outside contractor and, when the strike began, were making as little as $6.40 an hour—walked off the job. I come from a family of labor lawyers (and, before them, labor organizers). Not crossing a picket line was baked into my DNA, to say nothing of being a prerequisite if I wanted my seat at the Thanksgiving table. (I made that exact joke at the time, which tells you something about how much I’ve grown.) But I was also teaching a 23-student seminar that met on campus every Thursday afternoon, and so, as I wrote on “PrawfsBlawg”—the blog where I was cutting my teeth at the time—I was torn. I asked my students to tell me how they felt, and when they overwhelmingly supported moving, I joined a number of my colleagues in holding class off campus.

The response was … something. My first post drew dozens of comments. Then came a town-hall meeting at the law school about the faculty’s response to the strike, at which a student read a statement on behalf of a “large group of students” accusing those of us who had moved off campus of forcing our politics on them, of breaching a contractual obligation to teach when and where they’d signed up, and of deserving sanctions ranging from docked pay to termination. When I wrote about that, the comments exploded—from critics who thought we were imposing on our students, from critics who thought off-campus classes were an empty gesture and that we should have canceled class altogether, and from more than a few anonymous commenters whose main contribution was insulting everyone involved, me very much included. (The New York Times ran a story that April under the headline “Anger Rises on Both Sides of Strike at University of Miami.” The old saw would’ve been thrilled.)

Rereading those posts and threads twenty years later is … humbling. Some of it holds up. I wrote then that it wasn’t just students’ right but their obligation to tell their professors when they disagreed, and that the whole mess had prompted more dissent on campus than I’d seen since I got there—which I couldn’t accept was a bad thing. I still believe that. I even asked, in that very first post, whether it was possible to take a position that wasn’t offensive to one side or the other—and whether it was necessary to try. Apparently, I’ve been chewing on the old saw for a long time.

Some of it holds up less well. I objected to one critic’s questioning my motives while, in almost the same breath, questioning his—not my finest moment. One of my sharpest critics, writing as “been there,” was also right that I had framed “the real question” in a way that stacked the deck—and that the most candid defense of what I’d done wasn’t that it was the only neutral choice, but that it was ultimately my call. And it fell to the late Dan Markel, whose outsized influence on my career I’ll write about one of these days, to remind everyone in the thread to “play nicely.” If there’s a better summary of how to disagree without being disagreeable, I haven’t found it.

In retrospect, I’m not sure that writing publicly about such a divisive topic was the smartest thing for a tenure-track professor in his second semester of teaching to do. But as I put it at the time, I’ve always thought that writing is a good way to struggle with important issues—and to make sure I’m not way out on the edge with my own thoughts. Writing is how I cope. It always has been. And the best articulation of why it’s worth doing in public came not from me, but from one of the commenters, labor law professor Joseph Slater. A “teaching moment,” he wrote, isn’t about trying to convince anyone to agree with you; it’s about explaining the history, the policy concerns on both sides, and the relevant legal rules—and then letting people form their own opinions.

Two decades, a few jobs, and one newsletter later, that’s still the job, at least as I understand it. The stakes today are a lot higher than the question of where a 23-student seminar met for a few weeks in March 2006, and the arguments about the Court are only going to get louder as reform moves from the faculty lounge to the floor of Congress. I don’t expect everyone to agree with me about what should happen next; frankly, I’d be worried if they did. But if “One First” can help even some of you understand the Court well enough to reach your own conclusions—and to argue about them, in good faith, with people who reach different ones—then it will have been worth every late night, every early morning, and every frantic pocket of writing time in between.

Thank you for four years. Here’s to the fifth!