Dahlia Lithwick and Mark Joseph Stern discussed Gorsuch’s refusal to follow both reality and precedent in a bonus episode of Amicus available to Slate Plus subscribers. Their conversation has been edited for length and clarity.
Dahlia Lithwick: Mark, you recently told me that Kennedy v. Bremerton was going to be the sleeper case that you were watching because it wasn’t just a referendum on doctrine. It was a referendum on truth. The case just came out, and the court held 6–3 that Coach Joseph Kennedy had his First Amendment rights to religious liberty and free speech violated by a school policy that did not allow him to pray with masses of students following football games. This feels like a singular moment because this entire case—and Justice Sonia Sotomayor used photos in her dissent to make this point—is a referendum on truth.
Mark Joseph Stern: There were two narratives in this case. One is that Coach Kennedy was simply engaged in quiet, private prayer at the 50-yard line and students voluntarily joined him. The other is that Coach Kennedy created a spectacle by engaging in loud prayer circles, to which he invited not only the members of his own team but also opposing teammates and individuals who attend the school. And the Supreme Court adopted this first narrative, even though—as the pictures in Sotomayor’s dissent illustrate—it is flatly false. This was not quiet, silent prayer. This was coercive, loud prayer during the course of school duties by a school official who was hired in part to serve as a leader and role model for students. He conveyed the reality that if you did not join his Christian prayer circle, you were not a full and true teammate, and you might not even deserve to be playing on that team.
Dahlia: And just to go through the facts for a minute, Justice Neil Gorsuch’s opinion for the court accepts the narrative that Kennedy was fired. Which he wasn’t—he was put on paid administrative leave. And Gorsuch accepts the narrative that this was “private” and “quiet,” even though there were TV cameras and elected officials and people storming the field and knocking over the tuba players to join.
It’s as if Gorsuch is writing some sort of medieval tract about a holy saint on a journey through the desert who’s just trying to pray, and this dumb school district keeps throwing obstacles in his way that it calls “accommodations.” It’s such a strange framing of the facts.
Mark: Gorsuch evinces an almost divine certainty, as though he is a holy man traveling the countryside of a medieval land back in the 13th century, receiving these visions from a deity that must supersede any puny, mortal illusions of reality. As he so often does, Gorsuch reflects an almost pathological certainty in his own rightness, an inability to believe that something he perceives to be true might not be true. He bulldozes over the facts of this case and blows past photographic evidence.
This is a horrifying approach to judging. It ratifies the Supreme Court’s stature as a group of gods on Mount Olympus who speak the truth because anything they say must be the truth. And in Kennedy v. Bremerton, we get this pathology in its purest form. The Supreme court can just manipulate the facts to craft a narrative—a “siren song of a deceitful narrative,” as a lower court judge put it—to get where they want to go when rewriting the Constitution.