Dissension at the Supreme Court as justices take their anger public - CNNPolitics
By: Joan Biskupic (CNN)
S E E D E D C O N T E N T
(CNN)Supreme Court justices have revealed a new level of defensiveness and anger in recent weeks, showing irritation with public expectations, the news media and one another.
The extraordinary public display extends beyond any single justice or case, although the majority's decision to let a Texas near-ban on abortions take effect has plainly triggered much of the consternation. On Thursday, Samuel Alito became the fifth of the nine justices to speak out, denouncing critics he said were seeking to portray the court as "sneaky" and "sinister" in an attempt "to intimidate" the justices. Alito told a Notre Dame Law School audience that the court has been wrongly cast as "a dangerous cabal ... deciding important issues in a novel, secretive, improper way, in the middle of the night." Justice Samuel Alito says Supreme Court is not a 'dangerous cabal' He and other justices newly speaking out have condemned the news media for playing up the significance of the court's September 1 decision that allowed an abortion ban after about six weeks of pregnancy to take effect. But as dissenting justices wrote, the decision undermined the court's precedent on abortion rights dating back nearly a half century. And the impact on the ability to obtain abortions in Texas is undeniable. Read More Rarely have so many justices uttered such provocative, off-the-bench comments at the same time. Some are at cross purposes, but they all highlight the potential for declining confidence in America's highest court. Public opinion polls and new congressional scrutiny reinforce a possible new threat to the court's reputation and legitimacy. Conservatives have tried to minimize the significance of their rulings and suggested they are merely responding to cases that come their way. But as the right-wing majority -- now with three Donald Trump appointees -- has moved aggressively, liberals have not kept their despondency quiet. "There is going to be a lot of disappointment in the law, a huge amount," Justice Sonia Sotomayor warned in a speech Wednesday. Justice Sonia Sotomayor: 'There is going to be a lot of disappointment in the law, a huge amount' The gulf between the justices is not unlike the differences between red and blue America. A disconnect also exists between the conservative majority and the public. Gallup reported that the court's job approval rating had dropped 9 points since July, to 40% of Americans approving of the job the justices are doing. That poll was conducted in early September after the order declining to block the Texas abortion law and after it also had rejected Biden administration initiatives on US asylum policy and an eviction moratorium during the pandemic. Other recent polls have shown that fewer than one-third of Americans want Roe v. Wade, the 1973 decision that legalized abortion nationwide, overturned. The court's image and institutional acceptance may matter even more in the weeks ahead, as the justices undertake a new session that includes continued abortion-rights disputes, a test of Second Amendment rights and gun regulation, and a controversy over public aid for religious schools.
No more ordinary speeches
The speeches of Supreme Court justices tend to be rooted in history and broad legal themes and they often seek to be inspirational. They usually shun talk of cases or current events. Most avoid politics. Justice Amy Coney Barrett's address at the University of Louisville's McConnell Center in early September stood out, and not only because it was the newest justice's first major appearance since her confirmation last year. Justice Amy Coney Barrett says Supreme Court is 'not a bunch of partisan hacks' She was introduced by Senate Minority Leader Mitch McConnell, who had a strong hand in shaping the current Supreme Court. The Kentucky Republican blocked then-President Barack Obama's 2016 nomination of Merrick Garland, saying the presidential election year precluded Senate action on a Supreme Court nominee. Four years later, after Justice Ruth Bader Ginsburg's death, McConnell ensured that Barrett was confirmed just days before the 2020 election. "My goal today is to convince you that the court is not comprised of a bunch of partisan hacks," Barrett told the audience. "The media, along with hot takes on Twitter, report the results of decisions," she said, according to local media reports at a speech where no audio or video recordings were allowed. "It leaves the reader to judge whether the court was right or wrong based on whether she liked the results of the decision." Justice Clarence Thomas, also a conservative, struck a similar theme against the news media when he spoke to a Notre Dame Law School audience last month. "I think the media makes it sound as though you are just always going right to your personal preferences," Thomas said. "If they think you're anti-abortion or something personally, they think that's the way you'll always come out." Justice Stephen Breyer, who has been promoting a new book in a round of interviews, has focused on how long it took the court to build public confidence over the decades. Justice Clarence Thomas says judges are 'asking for trouble' when they wade into politics The senior liberal has urged audiences not to take such confidence for granted. He also had urged people not to see the justices as "junior-varsity politicians." Breyer, too, has criticized journalists and politicians for identifying justices by the presidents who appointed them and their political parties. The Bill Clinton appointee also argues that the current 6-3 split at the high court does not reflect politics or ideology but rather jurisprudential methods. On today's court, however, all six conservatives were appointed by Republican presidents and the three remaining liberals were appointed by Democratic presidents. In earlier eras, alignments did not break as neatly along political lines. Decisions in closely watched cases often follow the familiar lines. In the 2020-21 term, the six conservative justices (over liberal dissent) narrowed the reach of the 1965 Voting Rights Act and ruled against union organizers on agricultural land. The recent disputes regarding abortion, the eviction moratorium and asylum policy also split the justices largely by ideological and political affiliation.
The shadow docket
Of all the recent remarks by justices, Alito's were the most pointed and surprising. It is unusual for a justice to engage in such an extended public defense of internal procedures. His remarks at the Notre Dame Law School addressed the justices' process for emergency requests on what has been dubbed "the shadow docket." That phrase has mainly been used by critics, but liberal justices have also invoked it, and in the Texas abortion case, Justice Elena Kagan said the majority's action was "emblematic of too much of this court's shadow-docket decisionmaking -- which every day becomes more unreasoned, inconsistent and impossible to defend." Such cases are resolved without full briefings or oral arguments, often without any public explanations or recorded votes. They sometimes come late at night, such as the Texas order, which was issued at midnight September 1. 
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Breyer speaks out on Supreme Court's Texas abortion law decision01:31 Alito tried to make the case that critics had wrongly cast the justices' handling of emergency requests as sinister and threatening. He said they act in "the dead of night" because filings come to them late. He said the justices are not "so deluded" that they think they can "sneak" through orders without detection. Alito also scoffed at attention members of Congress were putting on the so-called shadow docket and the Texas case. Senate Judiciary Chairman Dick Durbin, holding a hearing on Wednesday, said he was skeptical of justices' assertions that politics do not influence their actions. Durbin, an Illinois Democrat, observed that during the Trump years the high court routinely favored the Republican administration in such emergency orders. "So," said Durbin, "when Justice Breyer decides to write a book and Justice Barrett decides to go to the McConnell Center in Louisville, Kentucky, and argue that 'no politics, we're just playing them straight, calling them as we see them,' and then you look at this (Texas abortion case), well, it defies description." Speaking to his audience a day later, Alito attributed "political talk" and criticism to "unprecedented efforts to intimidate the court or damage it as an independent institution."
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Sure it is. McConnell saw to that with his dirty tricks
Uh huh - no politics in their decisions. I have a bridge to sell you in the Sahara Desert, cheap.
SOTUS is non-partisan, when did that happen?
The SCOTUS was non-partisan, trump and McConnell made sure it isn't anymore.
The SCOTUS was bi-partisan along ideological lines, it's always been roughly split between liberal and conservative ideals. Now it just heavily leans conservative, so the conservatives are favoring their fellow political conservatives with their rulings and the middle of the night supposedly 'emergency' requests aka 'shadow docket'.
Republicans and specifically Mitch McConnell should have just been truthful about why they blocked Merrick Garlands nomination nearly a year before an election, their answer should have been "Because we can and this is politics" instead of their weak excuse claiming they wanted the 'people' to decide the next justice in the Presidential election. They truly showed how two faced and hypocritical they can be when they confirmed Barrett just days before a Presidential election. Their party has now become the party of scorched earth politics which burns anyone who tries to reach across the aisle.
The era of bi-partisan governance is over. There have always been bitter battles happening between the parties but never has it been this toxic with one side openly admitting at times they would rather side with white fascist authoritarians like Putin's Russia than with their fellow Americans who don't happen to look like them, pray like them or love like them.
The party names have never really mattered much, it's always been about the ideology, conservative vs liberal, as both parties have evolved in different ways from within where there was once a Democrat party controlled by religious conservatives and a Republican party controlled by liberals and progressives. Now that's been reversed but the bitter battles between the ideologies remains the same.
The SCOTUS is just a reflection of those changes, and like the political parties, remains ideologically divided. And the reality is that with a conservative majority, conservatives are going to use their power like a cudgel against liberal and progressive ideals, not the scalpel as would a truly non-partisan justice would who owed no allegiance to either ideology or party, sticking closely to the constitution and the letter of the law instead of being influenced by ideological zealots.
All presidential candidates in the future should be asked to pledge that they will only appoint "moderate" justices to the Supreme Court. There has to be a long term effort to end partisanship on the high court. It might take a few decades but eventually it could be done.
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All true, great post.
Voting record would be a good indicator.
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Lol, I just read that article. Sry guys, hate to break it to you, but when I can predict exactly how a vote is gonna go based on nothing but what president appointed each justice… yeah, you have a legitimate legitimacy problem.
Excellent term!