Philippa Kaur

The U.S. Supreme Court struck down a New York law on June 23, 2022 that had imposed strict limits on carrying a handgun in public. It was a much anticipated decision, as the court continues to issue opinions ahead of wrapping its term in the next week or two.

But people were being kept waiting about when exactly the court’s ruling on Dobbs v. Jackson Women’s Health Organization, which could overturn Roe v. Wade, will be issued.

The court announces what days it will release rulings and is only scheduled to announce more on June 24. No one outside the court knows which major rulings will be published when – or if the court could decide to release more opinions into early July.

There’s a reason the court remains so secretive and why its abortion ruling appears likely to be one of the last before the court lets out for the summer. We asked constitutional scholar and Supreme Court expert Stefanie Lindquist to explain what’s behind the court keeping a tight lid on its work.

US Supreme Court Justice Clarence Thomas talks with his legal clerks in 2002.
Dave Hume Kennerly/Getty Images

Does research back up this idea that the court saves the most high-profile rulings for last?

There has been very careful research done by very distinguished scholars and judges who tested the proposition that the court’s most important decisions are handed down late in the term. They measured importance based upon the extent to which the New York Times covered that case. And their research confirmed that it is absolutely true that the most highly important decisions the court renders – ones that overturn precedent, for example – aren’t announced until the end of the term.

One reason may be because the court is being particularly careful about the content of those decisions. And because they might have involved more negotiations over the content of the opinion itself, or involved the extra work of writing dissents and concurrences.

Is it clear why they release these major decisions at the end of the term?

There’s been some speculation they want to wait to issue these opinions right before they leave town. Because they’re social creatures as all of us are, some speculate that they don’t want to have to discuss these cases in their social circles. But I think it’s most likely that it is a combination of workload and because these cases are more time intensive. The justices also understand the public impact these cases can have. But, ultimately, it’s not clear exactly why they do it.

The court is known for its secrecy. What’s the point of the court being so tight-lipped about its decisions?

The court is an institution that has, over time, very carefully husbanded its legitimacy in the eyes of the public.

The late Justice Antonin Scalia required his clerks to sign an agreement respecting the privacy of the court’s deliberations. He told them that if they violated this secrecy, he would do everything he could to undermine their future careers.

The court is very careful about ensuring that once it issues an opinion, it is the final opinion. Revealing any internal and potentially divisive dynamics related to the court’s decision-making process could undermine the force and effect of a Supreme Court decision.

Police stood guard outside Supreme Court Justice Brett Kavanaugh’s home in June as protestors marched past his home.
Nathan Howard/Getty Images

Why do they not even say when a specific decision will be announced?

I think it’s probably difficult for them to predict the exact timing of decisions, frankly. Remember, the court’s final opinions are the result of a negotiation among the individual justices. And until they’re ready, they can’t necessarily say, “This is the day we’re going to sign off,” especially at the end of the term when many of these very important decisions are announced.

There may be negotiations and proofreading up to the very last minute. The justices no doubt appreciate that these highly important decisions are going to end up in law school textbooks. They’re going to be carefully read by journalists. And the justices are a highly professional group of individuals.

So they’re concerned about every opinion they issue. But with these opinions they issue at the end of the term, that tend to be the most important decisions they render – they’re even more concerned about being precise in every sentence they write More

After nearly a year of investigating the attack on the US Capitol on January 6 2021, the Democrat-led House Select committee is holding a series of public hearings to present its findings to the US public. These findings include that the former US president, Donald Trump, and his allies engaged in illegal efforts to overturn the results of the 2020 election.

The committee, which has a Republican co-chair, Liz Cheney, also found they knowingly spread lies regarding the integrity of the electoral system, which culminated in the attack on the heart of American democracy.

According to one report in the New York Times, at least 20 million people watched the first primetime hearing. It was carried live by all major public and private news outlets in the US, with the notable exception of Fox News.

It bears repeating that, by all measures, the 2020 general election was one of the most secure elections in American history, with no evidence of widespread voter fraud. These facts have been confirmed over and over again by federal agencies and courts – most recently by the Trump administration’s attorney general, Bill Barr, via video testimony presented at the hearings. Barr recounted telling Trump following the election that his claims of fraud were “bullshit”.

Notwithstanding these facts, Trump led an aggressive disinformation campaign for the purpose of undermining the public’s faith in the integrity of the 2020 presidential election. It’s a campaign that continues to this day. Trump and other Republicans, including those running for elected office, continue to spread lies regarding that election.

During its convention in mid-June, the Republican Party of Texas approved its 2022 policy platform, which relies on false claims of voter fraud to formally reject the results of the 2020 election and proclaim Joe Biden’s victory as illegitimate.

Party lines

While much attention is being paid to Americans’ attitudes generally, more focus on partisan divisions is warranted. An ABC News/Ipsos poll released on January 19 found the American public’s attitudes about Trump’s culpability in the January 6 attack remain largely unchanged.

Partisanship appears to be the largest factor driving Americans’ views of the attack. For example, 91% of Democrats believe Trump is responsible, versus only 19% of Republicans.

Democrats are also more likely to be following the committee hearings – 43% versus just 22% of Republicans. Additionally, while 88% of Democrats approve of the work of the committee, only 32% of Republicans share this view.

Polling also reveals the enduring success of Trump’s disinformation campaign. For example, in January 2022 only 17% of Republicans said they would consider voting for a candidate who accurately characterised Biden’s victory as legitimate. Additionally, while there is no legitimate basis for concerns regarding voter fraud at the state level, Republicans are three or four more times more likely than Democrats to say voter fraud is a problem in their state.

Divergences in the attitudes of Democrats and Republicans concerning January 6 and Trump’s false election claims, while deeply concerning, are unsurprising given partisan differences in how and where Americans access information on matters of public concern.

For example, a Pew Research Center report published in January 2020 revealed that Republicans and Democrats place their trust in two “nearly inverse news media environments”. Republicans place less trust in – and are growing increasingly alienated from – more established news sources, while Democrats’ confidence in them remains stable.

The study also found that Republicans use news sources less frequently than Democrats. Recent declines in trust in, and engagement with, traditional media by Republicans coincide with a recent increase in illiberalism of the Republican Party.

Media polarisation

Such a concerning trend is not evident in European democracies. Comparative research suggests the US has much higher levels of partisan news production, consumption and polarisation than Europe, and lower levels of trust in traditional media.

Sitting in judgment: members of the House Select Committee to Investigate the January 6th Attack on the US Capitol.
EPA-EFE/Shawn Thew

Even when accounting for the differences within European states and the rise in the use of social media as a news source across Europe, the American information ecosystem is significantly more polluted, fragmented and polarised. For example, according to Ofcom, BBC One remains the most-used news source for people living in the UK. This contrasts starkly with the US, where the largest public news outlets rank far lower than many of the country’s private news outlets.

The declining level of trust in – and disengagement from – traditional media is worrying. Traditional mainstream media serves the important democratic functions of accurately informing the public regarding matters of public concern and holding those in power to account. Without these safeguards, democracies become more vulnerable to disinformation campaigns and other threats to democracy, particularly from politicians.

Democracy at work?

The committee hearings offer an opportunity for the US to share a collective experience that facilitates public understanding of the events surrounding January 6, and the ongoing threat to American democracy from those seeking to undermine democratic institutions. This includes the spread of disinformation and the laying of foundations for overturning future elections if Democrats prevail.

However, so far we have seen only a relatively small percentage of Americans – mostly Democrats – closely engaging with the hearings. Opinions regarding the legitimacy of the investigation and the lies that fuelled the attack tend to be more reflective of party affiliation than engagement with facts and the search for truth.

This demonstrates the enduring viability of disinformation campaigns led by leaders and politicians, particularly when the public’s access to information is heavily informed by party affiliation and one party is actively endeavouring to misinform its base. It further suggests that, while the US prides itself on maintaining a marketplace of ideas where truth ultimately prevails, such faith in the power of unencumbered public discourse is a folly.

This raises the question of whether the committee hearings will bring the political and legal reckoning required to neutralise the threat to American democracy posed by Trump and his allies. So far, there is little reason for optimism. More