In the long fight over the Supreme Court, we’ve internalized the notion that it’s World War I, and we’re lined up in our long fronts and we’re slugging it out…And so we perhaps overemphasize cases like: the case of snooping on the sexy texts or the case of the porno videos featuring women stomping on puppies. (To get this out of the way: no snooping on sexy texts, no videos of women stomping on puppies and killing them.) We'd like to think there's some long war and every battle in that war might presage a breakthrough...but it doesn't, not necessarily. They're unpredictable.
The relative importance of these two cases compared with say, Citizens United, is very low, and yet we have pretty angry debates about both. Part of it is that we like to argue about hypotheticals—“OK, well WHAT IF”—but part of it is that we think it’s important. But the latter is not so much: not so many sexy texters on company phones out there; not so many people who like watching women crush puppies under their heel. It’s important to the people involved, no question, but then so is Gray’s Anatomy (trivializing, sorry. It’s their welfare at stake.) The majority of Supreme Court Cases are more like that than Citizens United. So a lot of the attention directed at the Supreme Court is misplaced: it fights more skirmishes than battles. We’d do better to look at the bureaucracy or the Congress, but we don’t, because their decisions aren’t rendered in oracular fashion, they’re not as personality-driven, they’re just a little more boring in some way…but just as consequential.