The Supreme Court Justices Do Not Seem to Be Getting Along
Collegiality is scarce, and tensions are apparent.
www.theatlantic.com
Washington Journal: Steven Mazie Discusses His Piece on Rising Tensions Among Supreme Court Justices
Steven Mazie, who covers the Supreme Court for The Economist, discussed his piece in the Atlantic magazine about rising tensions among Supreme Court Justices.
www.c-span.org
Supreme Court justices often get cross with lawyers arguing cases before them. But six months after the Court overturned Roe v. Wade, the justices are betraying signs of impatience and frustration with one another—sometimes bordering on disrespect. The Court has seen acrimony in its history, such as the mutual hostility among four of Franklin D. Roosevelt’s appointees. More recently, there have been reports of justices’ annoyance with Neil Gorsuch, and Sonia Sotomayor took the unusual step of publicly tamping down speculation of a dustup over his decision not to wear a mask during the Omicron wave a year ago. For decades, though, peace has mostly prevailed.
Justices of sharply different legal views have been dinner-party friends, skeet-shooting pals, and opera companions. Ketanji Brown Jackson’s predecessor, Stephen Breyer, and Clarence Thomas—ideological opposites but quite friendly—would whisper and tell jokes during oral arguments. The one-liners and jibes of Antonin Scalia, the ornery conservative, drew laughs from his conservative and liberal colleagues alike. As Ruth Bader Ginsburg grew frail in her final year, Thomas would offer his arm to ease her descent from the bench. Rancor has always animated the justices’ opinions, but it was limited to pen and paper. On the bench, civility reigned.
Not anymore. I’ve been attending Supreme Court oral arguments since 2013. As The Economist’s SCOTUS correspondent, I’ve watched arguments in the most contentious cases of the past decade—a Church-state fight in 2013; the Affordable Care Act and same-sex marriage showdowns in 2015; clashes over affirmative action (2015), labor unions (2018), voting rights (2018), and abortion (2020); and dozens of others. Only the justices are privy to the mood in their private conference room where cases are discussed after the hearings. But what I have seen this term on open display inside the courtroom is an obvious departure from the collegiality of years past.
The breaking point was clearly Dobbs v. Jackson Women’s Health Organization, the ruling in June that overturned Roe. Several long-standing precedents have fallen in recent years at the hands of the Court’s conservative majority. But in overturning 50 years of abortion rights, the Court was split—and not amicably. The minority did not dissent “respectfully” in Dobbs. Instead the three justices dissented with “sorrow” for the women of America and “for this Court.”
Over the summer, discord stemming from the Dobbs decision was apparent in comments by Elena Kagan, Samuel Alito and the chief justice, John Roberts. Roberts responded to charges that the Court was risking its legitimacy by arguing that mere disagreement with a ruling “is not a basis for questioning the legitimacy of the Court.” Two weeks later, Kagan seemed to reply to her colleague, saying Americans are bound to lose confidence in a Court that looks “like an extension of the political process.” Then, days before the 2022–23 term, Alito said suggestions that SCOTUS is “becoming an illegitimate institution” amount to questioning the justices’ “integrity” and cross “an important line.”
Based on the Court’s two most heated days of oral argument this fall, these tensions have not passed. The mood on the bench during these hearings was unrecognizable. With the exception of Gorsuch and Amy Coney Barrett (who look quite happy sitting next to each other), the justices do not seem to be getting along. Questions are long and tempers short. The seating arrangement—by tradition, the newest justices sit on the wings—exacerbates the tension. The three liberal justices are either sandwiched between members of the conservative bloc (Sonia Sotomayor flanked by Thomas and Gorsuch, Kagan by Alito and Brett Kavanaugh) or, in Jackson’s case, stranded at the end of the bench with only Kavanaugh at her side.
At the oral arguments I attended for the affirmative-action cases on October 31, the most conservative member of the Court, Thomas, and his new neighbor, the most progressive member of the Court, Sotomayor, paid each other no attention. Gorsuch, on Sotomayor’s other flank, raised an eyebrow in apparent derision when she asserted that segregation continues to plague American society in 2022. Roberts, whose opposition to all governmental uses of race, such as for hiring and contracting, is among his most strongly held views, tried to appear, as he often does, affable and open-minded. But he ended up holding his face in his right hand, taking in lawyers’ defenses of racial preferences with waning patience.
