Faculty Journal Articles and Book Chapters
ORCID (Links to author’s additional scholarship at ORCID.org)
Abstract
The membership of the Supreme Court affects how it decides cases. This maxim is well accepted among the public. But it is exceedingly rare for Supreme Court opinions to acknowledge this fact, even when it provides the best explanation for the Court’s behavior. And in the unusual instance in which Supreme Court opinions do refer to changes in the Court’s membership, it is jarring. This Article explores two questions that flow from these uncontroversial facts. First, why does it happen so rarely? Second, why does it happen at all?
To answer these questions, the Article looks to an unusual source: professional wrestling. Wrestlers have a term for the official story told to the audience, the fiction the performers maintain for the benefit of the show: kayfabe. While kayfabe was once a strict trade code of silence, nowadays just about everyone knows that wrestling is staged. Yet even today, because it is essential to the performance, wrestlers rarely “break” kayfabe—and betray the fiction—in the ring. Nevertheless, breaking kayfabe is more common than it once was, in part because performers can break kayfabe to advance their strategic goals in and out of the ring.
It is the same with judicial opinions. Judges adhere to a norm analogous to kayfabe when they refuse to explain the Court’s behavior by reference to changes in the Court’s composition. Judicial kayfabe demands that opinions explain the Court’s behavior according to legal rules and principles, even when criticizing it. This norm leads to some unusually artificial opinions that seem oblivious to the political forces that influence and constitute the Court’s membership. Kayfabe also causes readers to be jarred by Supreme Court opinions that break this norm. Although such opinions are unusual, they are most frequent in the most ideologically charged and high-profile cases.
Viewing judicial opinions through the lens of kayfabe helps explain the reasons for both the norm and its transgression. Most of the time, kayfabe promotes legitimacy and the public’s faith in the Court’s decision-making. But in the biggest cases, those benefits are outweighed by the costs that the fiction imposes. This Article therefore offers a qualified defense of breaking kayfabe, arguing that it is appropriate when the stakes are highest and alternative explanations for the Court’s behavior are weak.
Publication Title
Missouri Law Review
Document Type
Article
Keywords
Judicial rhetoric, Judicial behavior, Constitutional law, Judicial opinions, Supreme Court
Recommended Citation
Thomas B. Bennett, Breaking Kayfabe, 89 Mo. L. Rev. 1093 (2025)
