The Supreme Court justices are getting testy with one another. As the court’s conservative revolution proceeds, the tone of the court’s opinions is getting increasingly confrontational — and increasingly personal. Extreme decisions are provoking extreme reactions. The leak of the Dobbs opinion last year, and the court’s botched investigation into it, can’t be helping the atmosphere.
The tension on this court seems to stem from different causes than the acrimony that prevailed in the court of the 1940s and 1950s, described memorably as “nine scorpions in a bottle.” Then, the justices fell out with each other yet managed to use their differences to create lasting, important schools of constitutional thought. Personal tensions among big personalities fueled intellectual distinction. Now, judicial disagreement is only fraying tempers and undermining collegiality and courtesy.
A major shift in tone can be seen in the liberals’ criticisms of major conservative decisions. It’s one thing to say in dissent that the other side is dead wrong. It’s another, more unusual one to attack the decisions’ very legitimacy as law. Here’s Justice Elena Kagan, dissenting in the student loan forgiveness case, Biden v. Nebraska: “In every respect, the Court’s decision today exceeds its proper, limited role in our Nation’s governance.”
