Erin M. Carr (Seattle University School of Law) has posted Nothing to See Here: Judicial Sanewashing and the Obfuscation of Constitutional Disorder (Review of Law and Social Justice) on SSRN. Here is the abstract:
Less than two years after critics cautioned of the dystopian results of “sanewashing” Donald Trump’s incoherent and factually untethered public pronouncements during the 2024 presidential elections, the country’s political and legal landscape has become unrecognizable. The federal government is engaged in a coordinated campaign of racial and ethnic profiling, endorsed by the Supreme Court. Paramilitary government forces of masked men openly hunt immigrants and terrorize American cities. Public executions of unarmed citizens, captured on video for all to see, are refuted by government officials as legally justifiable and entitled to absolute immunity. The notion that we are a nation of laws, rather than of men, is increasingly difficult to defend.
The question is, how did we arrive here? How did basic due process protections, the rule of law, and an established system of checks and balances crumble so quickly and so spectacularly? The answer to that question is “judicial sanewashing.” We need only look to the Roberts Court and its sanewashed treatment of law and facts to see how the United States evolved from a nation of laws into a sanewashed system predicated on legal, political, and factual distortions.
This article builds on an earlier piece examining the concept of “judicial sanewashing,” a term used to describe a growing phenomenon in which the Roberts Court relies on contrived interpretive methods and legal standards to radically rewrite the law and distort the true effects of its judicial decisions. Building upon the theoretical and taxonomical foundation set out in the first article, I now attempt to concretize the concept by examining the effects of judicial sanewashing techniques across several discrete but interrelated (and far from exhaustive) areas of the Supreme Court’s sanewashed jurisprudence. This article examines the effects of judicial sanewashing, drawing upon case illustrations from the Court’s rapidly evolving jurisprudence with respect to the weakening of political and civil rights for disfavored groups, the erosion of separation of powers, and the expansion of executive power under the Trump regime. In this article, I also explore the particularly destructive convergence of sanewashing, whitewashing, and mansplaining.
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