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The liberals on the Supreme Court can’t win. 

They’ve scoured every bit of historical precedent. They’ve run the words of the amendments and the relevant laws back and forth in their minds. They have no choice. Justices Elena Kagan and Sonia Sotomayor look over the scorer’s bench, into the beaming face of a golden retriever in a polyester jersey and shrug.

“Ain’t no rules say the dog can’t play basketball.”  

I’m exaggerating, of course. Fernfield Timberwolves v. Warriors et. al hasn’t made its way through the lower courts just yet. But shameful recent history has given us some indication of how the court’s liberals would rule on the major question of “Air Bud” eligibility. 

Kagan and Sotomayor joined the conservative majority this week to invalidate a Colorado ban on conversion therapy, the thoroughly discredited and incredibly harmful practice of attempting to change an LGBTQ+ person’s mind about their own sexuality.

In an 8-1 decision, two of the court’s three liberal justices agreed with the majority opinion, claiming that banning conversion techniques from talk therapy was an unconstitutional limit on speech and not, as Colorado argued, a regulation on health care providers. They punted the case down to a lower court, encouraging them to tear the law apart under a strict constitutional test.

This is par for the course in an era where the court has been entirely captured by textualism. The most generous summary of this judicial philosophy states that it represents a  belief that the meaning and purpose of laws can be gleaned from a pared-back and straightforward reading of the law’s text. In practice, it’s a way for the court’s conservatives to pick apart laws and protections they don’t like, dressing up the mutt of right-wing grievance in a crisp, blue jersey of supposed scholarship. 

The fact that the case before them this week came from a therapist who posited an entirely hypothetical encroachment on her freedom of speech — and that it wasn’t  turned away by a court that has used the issue of standing to turn away numerous challenges to the Trump administration — pretty much gave the game away.  Arguments about the plain text of a law show up when that benefits the conservative side. But whenever it doesn’t, the court’s right-wingers are happy to dump their pet theory by the roadside.

The Supreme Court is the ultimate arbiter of what’s legal under the Constitution. And there’s nothing in that particular rulebook that prohibits them from looking at laws based on their place in the culture, the reasoning of the lawmakers who passed them and their support among subject-matter experts.

There’s no foundational right to privacy in the Bill of Rights,  yet some of the best-remembered justices in this country’s history improvised one to protect the law as they thought it should be. If conservatives show up to court with a real dog of an argument, liberal justices aren’t bound to go along  just because no one has ever bothered to refute a ridiculous premise. 

What do you think? Will liberal justices ever stop playing the conservative’s game? Is it worth sticking to the rulebook as the right goes lawless? Sound off in the comments.

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