January 1, 2026
How the Supreme Court’s Judicial
Sanewashing Wrecked the Legal System
The Roberts court’s reality
distortions have thoroughly disrupted the law, facts, and democracy.
Last
fall, in the run-up to the presidential election, a new phrase began to
circulate. “Sanewashing” emerged as a term to describe the media’s coverage of
Donald Trump, which critics claimed made the rambling, often incoherent
statements of the then-wannabe second-term president appear more rational than
they actually were. Some argued this was contributing to the “erosion of our shared reality and
threaten[ing] informed democracy.”
We’ve
now been collectively living in a sanewashed political and legal landscape for
nearly a year. For that, we have the Roberts court to thank.
While
its popular origins lie primarily in politics, the sanewashing phenomenon is by
no means limited to the political sphere. Over the past two decades, the
Roberts court has pioneered and perfected the practice. Sanewashing—defined as
“attempting to minimize or downplay a person or idea’s radicality to make it
more palatable to the general public”—has become a prominent, if entirely
underappreciated, feature of the Roberts court.
Relying
on judicial sanewashing, the Roberts court has eroded due process protections, political accountability,
and civil rights, while
simultaneously consolidating power for itself, corporations, gun owners, Christian conservatives,
and state officials who owe their
political influence to heavily gerrymandered districts. All this has
been accomplished while the Roberts court has sought to present itself as a
neutral, nonpartisan institution, free from corporate interests and
policy preferences and guided solely by constitutional and democratic
principles. As the Roberts court has transformed into a conservative
policymaking body, it has maintained that it is merely fulfilling its constitutional
mandate.
The
judicially sanewashed opinions of the Roberts court haven’t been limited solely
to sanewashing the law; often, they also involve extensive sanewashing of the
facts too. For example, in tandem with whitewashing the anti-racist purpose of
the Reconstruction Amendments in Shelby County v. Holder,
the Roberts court also recast former Confederate states subject to the Voting
Rights Act, or VRA, as aggrieved and mistreated, and in need of legal
protection by the court.
According
to the sanewashed facts in Shelby County, the VRA was no longer
necessary because racially discriminatory voting practices were “rare” and the
remaining sections of the statute would be sufficient to protect minority
voting rights. In the decade since the court offered those tepid reassurances,
states formerly subject to the VRA’s preclearance requirements have passed an
avalanche of discriminatory voter suppression laws as
the Roberts court has simultaneously sought to further weaken the law. The
court is now prepared to strike down the remaining vestiges of
the statute it promised would remain in place to ensure voting
rights remained protected.
Similarly,
when sanewashing the First Amendment to recognize new speech rights by
corporations to engage in unlimited political spending in Citizens
United, the Roberts court tried to assure a skeptical public that
dismantling decades of campaign finance regulations would strengthen the
integrity of elections and allow voters to hold officials accountable. Fifteen
years later, the ruling has unleashed a torrent of unregulated corporate
spending in American politics, enabling super PACs to raise limitless funds
from corporations and undisclosed donors to exercise an outsized influence on
election results. Between 2010 and 2024, political spending by super PACs grew from $62.6
million to $4.1 billion. Americans are so disgusted with dark money in politics
that an overwhelming majority supports a constitutional
amendment to overturn Citizens United.
In
recent months, the Roberts court has adopted a new sanewashing
strategy—the shadow docket. The Supreme
Court, traditionally a court of last review, has increasingly decided
significant legal questions on its shadow docket, boldly exercising its
discretionary review power and circumventing the typical judicial process. The
shadow docket, which is quickly becoming one of the Roberts court’s preferred
sanewashing forums, has generated a glut of unexplained rulings, decided
without the benefit of hearing the full merits of the case and with enormous practical and legal
consequences. On the shadow docket, the Roberts court has inserted
itself into high-stakes legal challenges against the Trump administration,
sanewashing and mischaracterizing lower court rulings preventing the
administration’s lawless conduct as “emergencies” to justify intervening on the
president’s behalf.
Notably,
the shadow docket has been expanded by the Roberts court for the near-exclusive
benefit of the Trump administration, and only the Trump administration. On the
sanewashed shadow docket scoreboard, the Trump administration has a stellar
batting average. Whereas the court granted only four emergency
requests from the George W. Bush and Obama administrations over 16 years, it
has already granted 23 emergency requests
in the first 10 months of the second Trump administration, and has ruled in the
administration’s favor in 86 percent of its
recent shadow docket decisions.
The
shadow docket is by no means the only evidence of the Roberts court’s systemic
sanewashing. Stare decisis—a guiding legal
principle requiring courts to honor prior judicial decisions involving the same
or similar issues to allow for stability under the law—has been all but abandoned by the
Roberts court, except where it proves convenient.
Additionally,
justiciability doctrines—judicially created standards for determining when
federal court involvement is appropriate—are increasingly treated by the
Roberts court as discretionary and malleable.
Likewise,
the court’s promised fidelity to separation of powers principles and judicial
restraint increasingly present as little more than lip service.
As
the Roberts court ignores, deconstructs, or nullifies established judicial
norms, it tells us that it is doing no such thing. This, in effect, is judicial
sanewashing.
The
sanewashing techniques employed by the Roberts court to distort the law have
been varied, and often used in conjunction with one another. In some instances,
as when the court upended a half a century of constitutional protections for
abortion rights, the court has defended overruling precedent by describing
earlier decisions as “egregiously wrong and on a collision
course with the Constitution from the day it was decided,” drawing
false comparisons to discredited cases with limited parallels.
Meanwhile,
other legal doctrines have fallen by the wayside by being deemed by the Roberts
court as “discredited,” “unworkable,” or simply needing to end,
even though lower federal courts have been capably applying the legal standard
for decades and the invalidated laws had been models of success. It was this
sanewashed strategy that allowed the court to eviscerate campaign finance laws and eliminate federal courts’ ability to
prevent brazen partisan gerrymandering, ushering in today’s redistricting arms race and dark money mania. This
sanewashing approach was also used as a basis to end race-conscious affirmative action
in college admissions.
Often,
while excoriating earlier decisions and replacing judicial and legislative
judgment with its own personal precedent, the Roberts court has engaged in
perhaps the most performative sanewashing practice—claiming to be
exercising “judicial humility” that
predecessor courts supposedly lacked.
There
are real public and private costs to judicial sanewashing. In the last year,
judicial sanewashing has led to Supreme Court rulings that have empowered the president to act with
impunity, sanctioned the deportation of immigrants without due
process to conflict zones where they face torture and death,
allowed the president to order the wholesale dismantling of independent
federal agencies, authorized roving patrols of armed and masked
immigration agents to engage in racial profiling (defended by
the court as “common sense”), and
denied low-income women and transgender youth access
to life-saving medical care.
As
the Roberts court has sought to sanewash dubious legal theories, whitewash
facts and history, and mansplain health care so as to package its decisions as
sound and sensible, sanewashing has arguably become the dominant methodology
for constitutional and statutory interpretation by the Roberts court. The
Roberts court has legitimized anti-democratic legal theories and advanced a
biased, ahistorical interpretation of the Constitution through the sanewashing
of law and fact, distorting democratic norms while insisting that it is simply
following judicial tradition. The extent and magnitude of the effects of
judicial sanewashing are now on full display, threatening to corrupt our
democratic system and shared sense of reality.
Erin M. Carr is an
assistant professor of law. She teaches and writes in the areas of
constitutional law and civil rights.
