Erin M. Carr (Seattle University School of Law) has posted Judicial Sanewashing: The Roberts Court’s New Canon of Construction on SSRN. Here is the abstract:
In late 2024, a new expression – “sanewashing” – began circulating in the lead-up to the presidential election. The term was used to describe the media’s coverage of Donald Trump, in which journalists, in their attempt to make his often incoherent campaign and media statements seem semi-intelligible, were accused of presenting his ideas as more sensible and cogent than they actually were.
While finding its contemporary relevance primarily in politics, this Article argues that the sanewashing phenomenon is not limited to the political branches of government or the reporters who cover it. Instead, the Supreme Court, under the leadership of Chief Justice John Roberts, has played a pioneering role in sanewashing long before the term was colloquially adopted. By legitimizing specious legal theories and myopic historical interpretations of the Constitution, the Court has relied on sanewashing to reconstruct whole swaths of constitutional and statutory law.
Although the Roberts Court’s early use of sanewashing was initially less pronounced, the practice has proven effective in shifting constitutional law decisively to the right and, consequently, has become increasingly prominent in the Court’s decision-making. As the Court has sought to present dubious legal theories as sound, reasoned law, sanewashing has arguably become the dominant methodology for statutory interpretation and constitutional analysis under the Roberts Court.