The Supreme Court’s hidden power to heal our nation

As the Supreme Court begins its 2024-2025 term, several cases on the docket threaten to further inflame America’s cultural divisions. Each one pits fundamental rights against others in ways that seem to demand all-or-nothing resolutions.
In Free Speech Coalition Inc. v. Paxton, the court will decide whether a Texas law requiring age verification for websites with content “harmful to minors” should face strict scrutiny or mere rational basis review. United States v. Skrmetti challenges Tennessee’s ban on medicalized gender care for minors, pitting parental rights and transgender youths’ access to medical care against state authority. And in Smith & Wesson Brands Inc. v. Estados Unidos Mexicanos, the justices will consider whether U.S. gun manufacturers can be held liable for cartel violence in Mexico.
These cases exemplify a troubling trend in American jurisprudence: the framing of complex social issues as zero-sum battles between competing rights. As a legal scholar, I’ve spent the past year grappling with a pressing question: How can the Supreme Court break free from this divisive paradigm and help heal our deeply fractured nation?
It’s no secret that America is polarized, and with each new controversial Supreme Court decision, the differences only seem to deepen. But what if the court could play a different role? What if, instead of inflaming our divisions, it could remind us of our shared values and common identity as Americans?
This isn’t just wishful thinking. It’s an idea with deep roots in legal scholarship, most powerfully articulated by Mary Ann Glendon and Jamal Greene. Their work provides a roadmap for how the court can foster mutual understanding and social cohesion through its opinions.
In her seminal 1991 book “Rights Talk,” Glendon argued that American political and legal discourse had become overly fixated on absolute, individual rights. This “rights talk,” she contended, crowds out other important values like responsibility, community and compromise. It transforms every disagreement into a zero-sum battle of competing rights claims.
Glendon’s work delves deep into the historical and cultural factors that have shaped American rights discourse. She argues that our tendency to frame issues in terms of individual rights stems from a combination of our liberal political tradition and the unique development of American law. This rights-centric approach, while rooted in noble ideals of individual liberty, has inadvertently led to an impoverished public discourse that struggles to address complex social issues.
One of Glendon’s key insights is that this framework often fails to capture the full range of human experiences and social relationships. For instance, in debates about family law, framing issues solely in terms of individual rights can obscure the web of relationships and responsibilities that make up family life. Glendon calls for a more nuanced approach that recognizes both rights and responsibilities, and that considers the social context in which individual choices are made.
More recently, Jamal Greene has taken up this theme in his 2021 book “How Rights Went Wrong.” Greene argues that American courts have adopted an overly rigid, winner-take-all approach to rights adjudication. This framework, he says, fuels social division and makes it harder to find pragmatic solutions to complex problems.
Greene’s work builds on Glendon’s critique but focuses more specifically on how courts adjudicate rights conflicts. He argues that the current approach, which he calls the “absolutist” model of rights, often forces courts to choose between competing rights claims in ways that create clear winners and losers. This, in turn, can exacerbate social tensions and make it harder for people on different sides of an issue to find common ground.
Greene proposes an alternative “proportionality” model, which is more common in other constitutional democracies. Under this approach, courts would weigh competing rights and interests more flexibly, looking for ways to accommodate multiple perspectives rather than elevating one right above all others. This doesn’t mean compromising on core constitutional protections, but rather recognizing that most rights have limits and can be balanced against other important societal interests.
Both Glendon and Greene call for a more contextual approach to rights — one that balances competing values and leaves room for democratic deliberation. They want us to see rights not as trump cards, but as important interests to be weighed alongside other crucial societal concerns.
I share Glendon and Greene’s concerns about our impoverished rights discourse. But I’m also an optimist. I believe the Supreme Court itself can play a key role in elevating our national conversation by embracing their insights.
How? It starts with the recognition that Supreme Court opinions aren’t just dry legal documents. They’re cultural artifacts that shape our understanding of what it means to be American. The words the justices choose matter deeply.
Drawing inspiration from a rich body of scholarship on the court’s role as a public educator, I’ve identified strategies the justices could use to craft more unifying opinions. These include acknowledging multiple perspectives by recognizing the valid concerns and deeply held values on all sides, appealing to shared American ideals that transcend partisan rifts, and crafting opinions that speak to multiple audiences simultaneously.
Imagine if the court had taken this approach in recent controversial cases. In Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the majority could have more fully acknowledged the profound impact on women’s lives and liberty, even while ultimately ruling that the Constitution doesn’t protect abortion rights. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, which pitted a baker’s religious objections against LGBTQ customers’ right to equal service, the court could have done more to validate both the dignity concerns of LGBTQ individuals and the sincere religious beliefs of the baker.
These are precisely the kinds of cases that trouble Glendon and Greene. They argue that by framing such disputes as all-or-nothing battles between competing rights, the court misses opportunities to find common ground and workable compromises.
Of course, this approach isn’t a panacea. Deep disagreements will remain. But by adopting more inclusive rhetoric that reflects Glendon and Greene’s insights, the court can model how to engage across differences with wisdom and empathy.
Some might object that this is beyond the court’s proper role. Shouldn’t the justices just interpret the law, not worry about social cohesion? I’d argue this is a false choice. Clear legal reasoning and unifying rhetoric can — indeed, must — go hand in hand. In our hyperpolarized era, the court’s legitimacy depends on its ability to issue rulings that feel fair and well-reasoned to Americans across the political spectrum.
And, as Glendon and Greene both emphasize, rights adjudication isn’t just a matter of win-lose rulings. It’s about sustaining a constitutional culture in which rights and responsibilities are held in healthy balance. The court plays an outsized role in shaping that culture. Its words reverberate far beyond the parties to a case, influencing how we talk about rights and relate to our fellow citizens.
At this fragile moment for American democracy, we need the court to rise to the occasion. By embracing an inclusive approach to rights discourse, the justices can help remind us of our shared identity as Americans — and our capacity to find common ground in the face of our greatest challenges.
Asma T. Uddin is an attorney, a Deseret contributing writer and the author of “When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom” and “The Politics of Vulnerability: How to Heal Muslim-Christian Relations in a Post-Christian America.” She is also a Pluralism Fellow at the Mercatus Center at George Mason University.