Abandoning "Lawtalk" so that Ordinary People Can Recapture Sociocultural Norms for Democracy

Cristina Tilley, Supreme Fragility and the Everyday Fix, Michigan State Law Rev. (forthcoming)

Like it or loathe it, the Roberts Court is top of mind in modern political discourse. As movement conservatives cheer the Court's rollback of race and gender precedents and movement liberals shudder at every toppled landmark, lay Americans struggle to make sense of the rules that govern daily life. Is our shared addiction to judicial drama healthy? Or is a symptom of democracy gone awry? This Essay takes a broad view of democratic practice, suggests that Americans have been outsourcing their sociocultural responsibilities to a mercurial apex Court, and imagines new paths ahead. It opens by deconstructing the erosion of stare decisis norms in the Roberts Court and confronting the resulting fragility of individual rights, which today seem mere pawns in the justices' intramural power struggles. The Essay particularizes this dynamic in a use case, suggesting that liberal justices have cleverly turned their colleagues' contempt for precedent against an emerging conservative gun jurisprudence. From there, it takes a more holistic view and asks whether this judicial tit-for-tat might present opportunities for ordinary people to recapture a muscular role in their own democracy. It traces the history that led Americans to abandon the deliberative practice of "everyday talk" with neighbors and peers in favor of "lawtalk" among professional elites, a mode of discourse that has colonized the sociocultural arena. The Essay concludes with a second use case, showing how everyday abortion talk faded during the Roe years but poured forth in the wake of Dobbs. This torrent of intimate, non-linear conversation, and the early success of abortion rights initiatives at local ballot boxes, illustrates how ordinary Americans freed from lawtalk can develop sustainable sociocultural norms through self-searching deliberation across difference.