It was pretty jarring earlier this month when the justices of the U.S. Supreme Court took the bench for the first time since the omicron surge over the holidays. All were now wearing masks. All, that is, except Justice Neil Gorsuch. What’s more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone setup in her chambers.
Sotomayor has diabetes, a condition that puts her at high risk for serious illness, or even death, from COVID-19. She has been the only justice to wear a mask on the bench since last fall when, amid a marked decline in COVID-19 cases, the justices resumed in-person arguments for the first time since the onset of the pandemic.
Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.
They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.
Gorsuch, from the beginning of his tenure, has proved a prickly justice, not exactly beloved even by his conservative soulmates on the court.
At his first sitting in 2017, he sought to dominate the argument and repeatedly suggested that a complex case, involving conflicting provisions, was really very simple.
“Wouldn’t it be easier if we just followed the plain text of the statute?” he asked over and over. “What am I missing?”
A lot, said his colleagues, both liberal and conservative.
“This is unbelievably complicated,” lamented conservative Justice Samuel Alito. Whoever wrote the statute must be “somebody who takes pleasure tearing the wings off flies,” he said, provoking loud snickers on the bench.
Of course, anybody who regularly watches Supreme Court arguments is used to seeing some testy moments in both big and little cases. But you don’t have to be a keen observer these days to see that something out of the ordinary is happening.
Some of it is traceable to the new conservative supermajority, including three Trump appointees, a court that may well end up more conservative than any since the 1930s. It’s a majority that has evidenced less and less respect for precedent, or the notion of deference to Congress in setting policy.
So it’s not surprising that the court’s three liberal justices would be upset. It is the degree of the upset, though, that telegraphs something different. When the court in November seemed prepared to overturn Roe v. Wade, Justice Sotomayor had some well placed verbal jabs at the ready.
Noting that 15 justices over 50 years have reaffirmed the basic framework of Roe, and only four have dissented, she asked this pointed question: “Will this institution survive the stench that this [turnaround] creates in the public perception that the Constitution and its reading are just political acts?”
At oral argument, Justice Elena Kagan, one of the court’s best questioners, sometimes takes a different approach. She just shuts down, rather than alienate her colleagues. Still, her anger is often palpable, the color literally draining from her face. And Justice Stephen Breyer on occasion just holds his head.
Neither, however, could contain themselves 12 days ago at the argument testing the government’s vaccine-or-test mandate for large employers, adopted under provisions of the Occupational Safety and Health Act. Breyer called the challengers argument “unbelievable.” And Kagan pointedly observed, “This is a pandemic in which nearly a million people have died, by far the greatest public danger that this country has faced in the last century… and this is the policy that is most geared to stopping all this.”
There isn’t a lot of love lost among the court’s six conservatives either. They often agree on the outcome of a case but not the legal reasoning, with Chief Justice Roberts sometimes trying to rein in the court’s most aggressive conservatives. If you watch carefully, you can see conservative eyes rolling from time to time.
All of which is contrary to the picture both liberal and conservative justices like to paint for the public. Just over three years ago, Kagan and Sotomayor, speaking at Princeton University, talked about how hard all the justices work to maintain good relationships and contrasted the court in 2018 to the court in the 1940s, when the justices detested each other so much they were known as “nine scorpions in a bottle.” We are not scorpions, Kagan and Sotomayor said.
“I think all of us need … to realize how precious the court’s legitimacy is,” said Kagan, noting that the court doesn’t have an army to enforce its rulings. “The only way we get people to do what we say that they should do is because people respect us and respect out fairness,” she said.
Justice Clarence Thomas, perhaps the court’s most conservative member, said something similar at Duquesne University in 2013.
“The people at the court, in my time at least, think that the Constitution, the country … the court is much more important than they are and they somehow keep it together to decide cases appropriately and to get along with each other in a civil way,” he said.
These days, however, the elbows are a lot sharper. Some of it may be attributable to COVID and the bizarre conditions under which the court has had to conduct its business, without the usual set of of full, in-person interactions.
At the same time, many of the conservatives are vying for the position of intellectual leader of the conservative majority, while the chief justice privately worries about going too far too fast.
There are, in addition, some long and perhaps not so buried resentments among the conservatives. Alito on occasion barely conceals his disdain for Roberts. That may stem from the way Roberts became chief justice.
In 2005, the Bush White House was preparing for the retirement of the ailing Chief Justice William Rehnquist, and according to reliable sources, Alito was led to believe that he would be nominated to become chief justice. But Rehnquist did not retire at the end of the term in June, as expected. Instead Justice Sandra Day O’Connor did, and President George W. Bush, after a botched effort at naming a woman, picked Roberts to be O’Connor’s successor.
Then, just as Roberts’ confirmation hearing was about to start, Chief Justice Rehnquist died.
Bush, who had hit it off with Roberts in their interview, immediately moved Roberts up, withdrawing his nomination as associate justice and instead nominating him to be chief justice. That allowed Roberts’ confirmation hearing to move forward almost on schedule and right away. And Alito was instead slotted into the now empty position to replace O’Connor, his expectation to be chief dashed into smithereens.
If Rehnquist had died a month later, and Roberts had already been confirmed to replace O’Connor in the interim, perhaps Alito would in fact have been nominated to be chief justice. But that was not to be.
Harvard law professor Noah Feldman, author of Scorpions, a book about the 1940s court, notes some big differences between the justices on that court and this one. Many of the justices on the court in the 1940s were very famous; they were household names; they were from very different professional backgrounds, both political and legal. In contrast, the justices today have had very similar careers; they were and are largely unknown to the public as individuals. And while they initially got on reasonably well, says Feldman, two things are happening to change that.
One, he observes, is that conservative justices “are on the cusp of what, from their perspective, is a historic opportunity to reverse some liberal decisions that their whole movement grew out of hating, with Roe v. Wade the most famous.” And the second is “that you’re seeing fissures in the conservative legal movement based on its success.”
And linked to all this is personal ambition. Several of the conservative justices see themselves as the heir apparent, the intellectual leader of the conservative wing, taking the place of the late Justice Antonin Scalia, the conservative icon, whose work led to the rise of the conservative legal movement first off the court, and then on the court.
But, as Feldman observes, Scalia referred to himself as a “fainthearted originalist” and “what he meant by that was that he was an originalist, but not if it meant overturning some of the things that have existed for a long time, like the administrative state.”
In short, Scalia often voted to uphold the power of Congress to delegate to agencies and experts the power to regulate public health and safety, and to protect the integrity of the marketplace. Indeed, as Harvard law professor Richard Lazarus observes. Twenty years ago, Scalia, in a unanimous opinion for the court, “rejected an argument pretty similar to” the one the six current conservatives embraced last week in essentially striking down the vaccine-or-test OSHA mandate.
So, it turns out that some or all of today’s conservative justices are not at all fainthearted. They are “come-what-may originalists,” says Feldman, “while others are more moderate and reasonable in their exercise of originalism.”
That said, those are not the issues that grab people’s attention. The issues that do are the flashpoint social issues of our times — guns, religion and abortion. And on those, Feldman maintains, “The conservatives are playing with fire.”
In recent decades, the court has built its legitimacy on a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted. The left got gay rights and gay marriage, and some limits on presidential power exercised in the name of national security. And the right got expanded religious liberty and expanded free speech, which brought with it expanded corporate spending in elections. And it got a gutted Voting Rights Act.
But now “the current conservative majority is on the cusp of ending that game,” Feldman believes.
And, he says, if the conservative majority overturns Roe v. Wade, “as it looks like it probably will, it will be doing something the Supreme Court has never done … in its history, and that is, reverse a fundamental right that ordinary people have enjoyed for 50 years, and say, ‘Whoops, … you never really had this right at all.” The court, he maintains, “has never turned back the clock of liberty in that way before.”
What would be the longer-term consequence of that for the court? Perhaps nothing. It certainly seems preposterous today to imagine enough votes in Congress, especially in the Senate, to expand the size of the court and allow a Democratic president to fill the new seats. And clearly President Biden doesn’t want to do that. But some constitutional scholars, like Feldman, see the kind of conservative judicial activism that is unfolding as posing a danger to the court itself not too far down the road.
“Abortion, guns and religion are and will always be hot-button front page topics in the United States,” Feldman observes, adding that over time, those kinds of decisions “add up,” and sooner than one might imagine, there can come a breaking point.
“I don’t think it will happen through the drip, drip drip,” he says. “I think it will happen through the tsunami. But I also think that overturning Roe v. Wade … could well turn out to be the beginning of that tsunami.”
Maybe yes, maybe no. But if it happens, it won’t be because the court’s conservatives detest each other in the same way that the justices did in the 1940s. Back then, they couldn’t agree on anything because, as Feldman notes, “they hated each other.” And even though they might have been able to to reach a consensus, they didn’t “because the hatred was so deep.”
To cite just one example of how bad it was, Justice Felix Frankfurter called Justice William O. Douglas “one of the completely evil men I have ever met.” And Douglas referred to the Austrian-born Frankfurter, who was Jewish, as “Der Führer” and that was during World War II.
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