Justices' nerves fray in Supreme Court's final stretch

Politico

10 hours ago

The Supreme Court's nine justices often like to tout their camaraderie, hoping to dispel public perceptions that they are locked into warring ideological camps.
But the final rulings of the current term — issued from the bench during a tense 90-minute court session Friday — revealed some acrimonious, even acidic, exchanges.
Most of the rhetorical clashes pitted the court's conservative and liberal wings against each other in politically polarized cases. But not all of the spats fell squarely along ideological lines.
On the whole, they paint a picture of nine people who are deeply divided over the law and the role of the courts — and who also may just not like each other very much.
The most acerbic feud Friday came in the biggest ruling of the year: the justices' 6-3 decision granting the Trump administration's bid to rein in the power of individual district court judges to block federal government policies nationwide.
Justice Amy Coney Barrett, writing for the court's entire conservative supermajority, responded sharply to a pair of dissents, one written by Justice Sonia Sotomayor and the other written by Justice Ketanji Brown Jackson. But Barrett reserved her most pointed barbs for Jackson.
Barrett, a Trump appointee and the second-most-junior justice, accused Jackson, a Biden appointee and the court's most junior member, of mounting 'a startling line of attack' not 'tethered … to any doctrine whatsoever.' According to Barrett, Jackson was promoting 'a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush,' and she was skipping over legal issues she considers 'boring.'
'We will not dwell on Justice Jackson's argument, which is at odds with more than two centuries' worth of precedent, not to mention the Constitution itself,' wrote Barrett. 'We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.'
Well, maybe not 'only' that. While insisting she wouldn't 'dwell' on Jackson's arguments, Barrett wound up devoting nearly 900 words to them, capping the passage off with another zinger suggesting hypocrisy on Jackson's part.
'Justice Jackson would do well to heed her own admonition: 'Everyone, from the President on down, is bound by law,'' Barrett wrote. 'That goes for judges too.'
For her part, Jackson accused Barrett and the other conservatives of an obsession with 'impotent English tribunals' and of blessing a 'zone of lawlessness.'
'What the majority has done is allow the Executive to nullify the statutory and constitutional rights of the uncounseled, the underresourced, and the unwary, by prohibiting the lower courts from ordering the Executive to follow the law across the board,' Jackson declared.
Although 42 percent of the court's opinions this term were unanimous, this week's decisions continued the pattern of liberals often finding themselves on the losing end of 6-3 rulings in the hardest-fought and most impactful cases. So, perhaps it's no surprise that the liberal justices are the ones to often paint the court's decisions in grave, even apocalyptic, terms.
The court's 6-3 decision that public-school parents must be allowed to pull their children out of lessons involving LGBTQ-themed books produced a fiery dissent from Sotomayor. She predicted a 'nightmare' for school as parents choose to pull their kids out of lessons they disapprove of on topics ranging from evolution to the role of women in society to vaccines. The ensuing 'chaos' and self-censorship by schools threatens to end American public education as we know it, she said.
'Today's ruling threatens the very essence of public education,' Sotomayor wrote. 'The reverberations of the Court's error will be felt, I fear, for generations.'
While the liberal justices more often found themselves on the losing side than the conservatives, some members of the court's right flank also found occasion to voice grave concerns about select rulings.
Consider a decision issued Friday involving an FCC fund that supports broadband access in rural areas. It's not exactly a hot culture-war issue. And a mixed coalition of three conservatives and three liberals joined together to uphold the fund. But Justice Neil Gorsuch, animated by the case's implications for the balance of power between Congress and federal agencies, filed a lengthy dissent that accused the majority of embarking on a judicial 'misadventure' and deploying 'ludicrously hypothetical' reasoning.
The majority, he wrote, 'defies the Constitution's command' that power be divided among the branches.
A day earlier, Gorsuch had exchanged sharp words with Jackson — but this time, he was in the majority. Jackson, in an opinion joined by the court's other two liberals, suggested the conservative majority's decision allowing South Carolina to exclude Planned Parenthood from the Medicaid program there amounted to a continuation of the long campaign by racists and segregationists in the South to resist federal civil rights laws enacted in the wake of the Civil War.
'A century and a half later, the project of stymying one of the country's great civil rights laws continues,' Jackson wrote.
Gorsuch, a Trump appointee, dismissed the inflammatory claim out of hand, calling it 'extravagant.'
Jackson has also used stark language in dissents from rulings on the court's emergency docket. In April, she predicted 'devastation' from the Trump administration suspension of education grants and called the court's decision to allow the cuts to proceed 'in equal parts unprincipled and unfortunate.'
One of the major surprises Friday was the court's decision to pass up issuing any opinion in the term's big redistricting case. It involved the Louisiana legislature's creation of a second majority-Black congressional district after courts ordered the legislature to do so to comply with the Voting Rights Act. Although the justices heard the case in March, they ordered that the case be reargued, likely this fall.
Justice Clarence Thomas, writing alone, scolded his colleagues for copping out despite a full round of legal briefing and 80 minutes of oral arguments on the issue.
'The Court today punts without explanation,' Thomas complained.
The way to resolve the Louisiana case 'should be straightforward,' the court's longest-serving justice said. Then he stepped up his rhetoric another notch, declaring that the court had not only failed to explain its action but that it defied any logic whatsoever. 'The Court … inexplicably schedules these cases for reargument,' Thomas griped.
The consternation displayed by the justices this week came as one of their former colleagues, retired Justice Anthony Kennedy, issued an impassioned warning that 'hostile, fractious discourse' was tearing at the fabric of American democracy.
To be sure, there are no outward signs the acrimony at the high court has reached the levels it did in 2022, following POLITICO's publication of a draft of the court's not-yet-released opinion overturning the federal constitutional right to an abortion. Thomas, a George H.W. Bush appointee, said then that trust at the court was 'gone forever.' And after that bombshell ruling was officially published, Justice Elena Kagan accused the court of making political decisions. The Obama appointee said only 'time will tell' if the justices could again find 'common ground.'
While the justices' disagreement in the major cases often seemed stark this week, there were occasional efforts to bridge the divide. Playing a role he often adopts, Justice Brett Kavanaugh seemed eager to downplay the practical significance of the court's ruling barring nationwide injunctions in most instances.
Kavanaugh said the district court injunctions at issue are rarely 'the last word' in high-profile fights over executive power. Those battles ultimately end up at the Supreme Court, he argued, so whether a district court's injunction is enforced nationwide or not matters less than what the justices decide on the slew of emergency applications landing on their so-called shadow docket. 'When a stay or injunction application arrives here, this Court should not and cannot hide in the tall grass,' wrote Kavanaugh, a Trump appointee.
During speaking appearances last month, Chief Justice John Roberts insisted the justices aren't at each other's throats, despite the tone of some of the opinions that come out as the court winds down its work for the term.
'I'm sure people listening to the news or reading our decisions, particularly decisions that come out in May and June, maybe think, 'Boy, those people really must hate each other. They must be at hammer and tong the whole time,'' the chief justice told an audience in Buffalo.
However, Roberts, a George W. Bush appointee, also said the court's summer recess is a welcome respite not only from work, but from colleagues. 'That break is critical to maintaining a level of balance,' he said.
Roberts, who traditionally teaches a legal course overseas during the summer and lounges at his vacation home in Maine, has one more official gig before he heads out. He's scheduled to speak Saturday morning to a judicial conference in North Carolina, where he'll have a chance to offer his latest thoughts on whether his colleagues are grating on each other or getting along.