The Supreme Court of the 21st century, the Court of Chief Justice Roberts, will not be remembered for its early unison, but instead for the divisions that came after the death of its two most iconic justices: Justice Antonin Scalia and Justice Ruth Bader Ginsburg. Scalia and Ginsburg were described as intense personal confidants but ideological opposites. Their deaths would, however, not just symbolize the end of their friendship but rather signal the end of an era of camaraderie and cooperation on the Supreme Court.
In 2016, an hour after the Court’s originalist juggernaut Scalia died, then-Senate Majority Leader Mitch McConnell, in a rebuke of historical and constitutional norms, stated, “this vacancy … [will] not be filled until we have a new president.” These moves were a sheer demonstration of political force, done despite clear historical precedent of lame-duck presidents appointing justices who were then confirmed. Senator McConnell utilized a Republican-led Senate to deny and block President Obama’s third Supreme Court appointment, which prevented the Court from undergoing an ideological shift to the left. Four years later, during the era of masks and the political turmoil of 2020, progressive darling Ruth Bader Ginsburg passed away just months before Election Day. In true and utter political fashion, the same Republican senators who had prevented an Obama nomination in 2016 rushed through President Trump’s appointment, Judge Amy Coney Barrett, to the Court in a record 30 days. The stark contrast between the Senate’s actions in 2016 versus 2020 underscored a clear and undeniable hypocrisy.
With this, the infamous 6-3, Republican-appointment-leaning Supreme Court we see today was born. The Court’s controversial composition, decisions, and public scandals have made many like myself question if the Supreme Court as an institution is a house divided. It seems apparent that it is no longer a Court of iconic American friendships but judicial opposites.
But, as I discovered during my conversation with former United States Solicitor General and Harvard Law School professor, the late Charles Fried, it is essential that we “get a little [historical] perspective on this,” and seek to understand this Court’s history of divisions.
Prior Court Divisions
The Supreme Court’s division on cases and interpretation of the law is not new. It is, in fact, not simply a custom but essential. Three Court experts attested that witnessing transitional shifts, both personal and ideological, throughout the years, is a common occurrence. However, there have been times throughout history when it boils over, spilling outside the chambers and into something more personal.
Professor Fried, in an interview with the HPR, conveyed that the transitions within the Court from one Chief Justice to another often have a substantial impact on the realm of law, stating, “When Warren became Chief Justice … there was an important set of reversals of previous doctrines. Whether more radical than now, that’s hard to say.” He also highlighted the compromises and sense of unease prevalent during the Burger Court era, which refers to the period from 1969 to 1986 when Chief Justice Burger led a Court known for its socially progressive decisions. From the landmark 1973 Roe v. Wade case to the 1978 affirmative action case, Regents of the University of California v. Bakke, it appears that this Court made numerous landmark decisions that were previously considered untouchable precedents. The Burger Court is evidence that such changes are part of the Court’s historical fabric.
Personal conflicts among the members of the Court are not a new phenomenon either. Harvard Law School professor and renowned legal scholar, Richard Fallon, shared in an interview with the HPR that he did not know whether or not there are collegial issues among the justices on the current Court. Still, he did note that during the 1940s and 50s, “there were at least three justices of the Supreme Court who really hated each other and were bad-mouthing each other at every opportunity to the press and to members of the Washington political elite.” The historical animosity among previous justices underscores the personal conflicts and disagreements within the Court that have rivaled even the most heated political debates.
These experts’ insights remind us that the current divisions and controversies surrounding the Court are not singular incidents, but part of a continuum that the Court swings back and forth between admiration and admonition of one another.
In an interview with the HPR, Supreme Court correspondent for The Economist and professor of Political Studies at Bard High School Early College-Manhattan, Steven Mazie, echoed these sentiments. However, Mazie also questioned the type of division he sees in the Roberts Court, “I mean, it’s often a house divided through history, right? But this is a particular kind of division.”
The history of the Court’s divisions emerges as a crucial thread in the broader story of the transformation of the Roberts Court. After all, the Court is not just a collection of legal minds, but a stage for enduring, and sometimes contentious, human interactions that shape the course of American jurisprudence. The question then becomes how we want our Supreme Court to operate in these moments of conflict and if the division we see today is, in fact, par for the course.
Divided Decisions
The early days of the Roberts Court had a great deal of unanimous decisions — making it far less polarized than the current 6-3 Court today. According to research conducted by FiveThirtyEight during the 2021 SCOTUS term, only 29% of decisions were unanimous. This is in stark contrast to the 2013 Court term, where a record 66% of decisions were unanimous — the highest percentage of unanimous decisions by the Supreme Court since 1953. Now, the Roberts Court is breaking records of the opposing kind. Polarized decisions, or votes that were strictly along party-appointment lines, accounted for 21% of the decisions from 2021’s 6-3 Court — the highest level of polarization seen in the last 70 years.
It is not abnormal for members of the Supreme Court to have different views on the law and the Constitution. It is abnormal, though, in modern memory, to see a Court so consistently divided. Mazie characterized it this way: “It’s two to one. It’s not on the precipice. It’s not on a knife’s edge. It’s not, will Kennedy or won’t he,” referring to Justice Anthony Kennedy, the former swing-vote of the court. He continued, “These big issues coming to the court are almost certainly going to be resolved in this particular way.”
This predictable kind of division seems to be entrenched in this Court, and cases like Dobbs v. Jackson, which overturned Roe v. Wade, and Students for Fair Admissions v. Harvard, ending the practice of affirmative action, serve as a compelling illustration of Mazie’s point. The politically controversial questions at hand in these cases were decided entirely along party-appointment lines, and the decisions were surprising to few. Nine individuals, who consistently align with party-appointment lines, are determining politically salient issues, raising concerns about the influence of partisanship on the judiciary. The predictability of these decisions has left some questioning if judicial independence has been compromised.
Mazie expressing how this phenomenon hurts the Supreme Court’s legitimacy. Paraphrasing the words of Justice Kagan, who spoke at Notre Dame Law School earlier last year, Mazie said, “It’s not a good look for the Court if the law changes just because personnel changes.” His concern about the consistency in the interpretation of the law by the Supreme Court is a valid legal and institutional critique, as it goes beyond mere fluctuations in public approval ratings. The notion that the Court’s composition can so significantly alter the interpretation of the law, as articulated by Justice Kagan, raises fundamental questions about the Court’s legitimacy. When the law’s meaning becomes contingent on personnel changes, it can undermine the public confidence in the Court’s role as a stable and impartial arbiter of justice, ultimately diminishing its perceived authority — which is the basis of its legitimacy.
To some extent, Professor Fallon pushed back on this idea of worsening legitimacy of the Supreme Court, claiming, “Legitimacy is group relative, and decisions that will enhance the legitimacy of the Court among one group will diminish it among another.” He did, however, agree with the opinion that the United States does have “a sharply divided [Supreme] Court on a number of high politically salient issues,” emphasizing that the justices’ views “correlate with political parties of the presidents who appointed the justices and tend to align well enough with what we call liberal and conservative views.”
There has also been a series of public disagreements among the Justices regarding a code of ethics. In a Wall Street Journal article, Justice Alito expressed, “No provision in the Constitution gives them [Congress] the authority to regulate the Supreme Court — period.” This was directly contradicted and refuted by Justice Kagan, who, while speaking to a panel at the 9th Circuit Judicial Conference, said, “It just can’t be that the Court is the only institution that somehow is not subject to checks and balances from anybody else. We’re not imperial.” At an event at the University of Minnesota Law School, Justice Barrett appears to have agreed with Kagan when answering a question concerning a code of ethics, “I think it would be a good idea … particularly so that we can communicate to the public exactly what it is that we’re doing.”
Divided Relationships
From Justice Clarence Thomas questioning the trust within the Court to clashes between Justice Alito and Kagan, both on and off the bench, it’s clear we should examine not only the clear divisions when it comes to legal opinion, but also their potential divisions as colleagues. If the members of this Court publicly disagree with one another in manners that call into question their collegiality, they make themselves no different than the political branches. The justices are judges, not politicians, and by acting like the latter, they jeopardize the authority of their institution. A justice may disagree with another, but they must do so in a way that is becoming of the robes they wear and the bench they sit upon — their disagreements should not be code for partisan positions.
When asked about the justices’ demeanor during controversial or politically contentious cases, Professor Mazie didn’t necessarily describe a cooperative environment. He shared his eyewitness account from the oral argument of the notorious Students for Fair Admissions v. President and Fellows of Harvard College. Mazie witnessed “raised eyebrows and … actual animosity between Kagan and Alito.” He explained a seemingly tense interaction between Justice Kagan and another Justice: “I saw a surprised look from Kavanaugh when Kagan seemed to ask a question of or make a point that seemed to be targeting Kavanaugh.” Mazie referenced this specific question from Kagan, who asked, “if you’re a judge and you want to have a diverse set of clerks, do you think a judge can’t think about that in making clerkship decisions?” Mazie explained that this was a dig at Justice Kavanaugh because he is “famous for both having and trumpeting his own diversity of clerks.” After his contentious confirmation embroiled with allegations of sexual assault, he was noted for hiring a class of clerks made up entirely of women — a first for the Court. When Kagan asked this question, Kavanaugh, who sits next to her on the bench, allegedly looked puzzledly at her as she stared straight ahead, highlighting the palpable tension in the courtroom during the case.
Not only has the courtroom become tense, but so has the differing opinions of the justices. Chief Justice Roberts and Justice Kagan, who have in the past been known for their warm regard for one another, seemed to have taken each other to task over Justice Kagan’s charged language in her dissent of the recent student loan case decision of Biden v. Nebraska. In the Court’s majority opinion, Roberts wrote, “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.” This was an apparent reference to Kagan’s dissent, where she uniquely claimed, “[the majority opinion] … violates the Constitution.”
However, there are skeptics who question whether these events and writings indeed reveal a sense of discord among the justices. Professor Fallon takes a cautious stance, admitting, “I just don’t know.” The inner workings and dynamics within the Court chambers remain largely unknown, making it challenging to assert definitively what occurs in the relationships between the justices. Fallon further explained, “I’m deeply skeptical of people who claim to know … the significance of interpersonal relations or how this Justice hates that Justice, and so forth.”
Regardless of the quality and friendliness, or lack thereof, of the justices behind the scenes, it is important that this Court, the Supreme Court, appears collegial and respectful. The justices should not be behaving in a way that is akin to politicians: They should behave like judges. If it appears that the justices have divided relationships with one another, then the public will see them as no different than members of Congress, whose relationships are marked by partisanship and division. To the average American, they will simply be politicians in robes. What happens to this court’s ability to carry out the rule of law then?
This Court is Different
Indeed, it is evident that the Roberts Court’s public behavior and persona have evolved over time. While we may not have an intimate look into their private interactions, how the Justices engage with each other and the public has transformed. This has become especially evident since the loss of Justice Scalia and, more recently, Justice Ginsburg.
The Court’s public image and dynamics have shifted and fractured. Regardless of whether there is a private division, there is a public one — an appearance of partisanship. This Court is not the same Court of a Scalia-Ginsburg friendship. It is a court that embodies American polarization. It is a court that appears as a house divided. This reality poses a danger to the health of the Court and raises concerns about its ability to do its job.
The Supreme Court does not have the power to finance or enforce its decisions. Its authority relies on the respect of not just the executive and legislative branches, but the American people. And when the Court appears divided, political, and polarized, just like the public, it is no longer viewed as the impartial umpire. When the Court appears partisan, it loses its respect; without this, it has no authority.
This institution has a history of division. It goes back and forth between cooperation and conflict. But, for the sake of the Supreme Court’s legitimacy, and for the sake of our republic, it is essential that those who sit on the bench do so with respect for one another.
