The Supreme Court's Gaslight Docket

53 Pages Posted: 13 Apr 2023

See all articles by Kyle Velte

Kyle Velte

University of Kansas - School of Law

Date Written: March 30, 2023

Abstract

The U.S. Supreme Court’s new conservative supermajority is gaslighting the American public. This article take a systematic look at key cases from the Court’s October Term 2021 through the lens of gaslighting. It describes these case as being part of what it dubs the Court’s “gaslight docket,” a descriptor that provides a useful and potentially unifying theoretical framework for analyzing and understanding the Court’s recent onslaught of rights-diminishing precedents.

The concept of gaslighting gained cultural purchase in the 1944 film Gaslight. Since then, the concept has become to subject of academic and theoretical inquiry. This article identifies gaslighting in the Court’s civil rights cases in both oral arguments and written decisions. It reveals that this gaslighting is trans-substantive, spanning cases involving voting rights, race discrimination/affirmative action, reproductive rights, LGBTQ rights, and the First Amendment’s religion clauses.

Because gaslighting has epistemic dimensions — knowledge production and gaslighting are connected — gaslighters instill epistemic doubt in their victims as a way to have the gaslighter’s production of knowledge “count” and to dismiss as unfounded other understandings of the world. The U.S. Supreme Court is an especially powerful “knower” — indeed, it is given the position of ultimate “knower” of the meaning and application of the U.S. Constitution. With each case it decides, the Court produces legal knowledge in the form of rules that must be followed in similar subsequent cases.

The results of the October 2021 term were astounding. Across multiple substantive areas, the Court issued decidedly anti-equality and anti-democratic decisions that threaten the promise of equal citizenship for women, people of color, and LGBTQ people. In so doing, the Court elevated the interests of the white Christian nationalism movement, declaring that those interests are not co-equal with the interests of marginalized groups but instead are interests that will be treated as “most favored” by the Court.

After describing the academic literature on gaslighting, the article applies the gaslighting analytical frame to a sampling of recent Supreme Court civil rights cases. It argues that the gaslighting framework does important work in revealing an alarming trend of privileging white Christian nationalism ideals at the expense of the rights of marginalized communities. It explains why the gaslighting framing matters for civil rights advocates across causes and proposes ways in which movement lawyers and movement judges can expose this oppressive move by the Court, learn from it, and counter it.

Suggested Citation

Velte, Kyle, The Supreme Court's Gaslight Docket (March 30, 2023). Available at SSRN: https://ssrn.com/abstract=4405367 or http://dx.doi.org/10.2139/ssrn.4405367

Kyle Velte (Contact Author)

University of Kansas - School of Law ( email )

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785-864-3577 (Phone)

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