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89 Mo. L. Rev. 1093 (2024)
Breaking Kayfabe

handle is hein.journals/molr89 and id is 1125 raw text is: Breaking Kayfabe Thomas B. Bennett* 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 termfor 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 artficial opinions that seem oblivious to the politicalforces that influence and constitute the Court's membership. *Associate Professor, Southern Methodist University Dedman School of Law. For helpful comments and ideas, I am grateful to Payvand Ahdout, Katherine Mims Crocker, Dan Epps, Michael Gilbert, Alex Gouzoules, Maggie Lemos, Paul Litton, Laura Moyer, Richard Re, Daniel Schumeister, Jarrett Seidler, Sandra Sperino, and Joel Wertheimer. I also thank participants at the convening on judicial decision- making held at Washington University School of Law in September 2023. Finally, I am indebted to the excellent editorial staff at the Missouri Law Review, particularly Tom Langdon, Jessie O'Brien, Matthew Swords, and Jacob Wood.

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