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.”
Arguing that the court lacked standing, Kagan didn’t just say the majority was incorrect. The court, she said, “violates the Constitution.” Technically, you could say that any time you don’t think the court has constitutional standing to hear a case. But the thing is, you don’t — not according to the usual rules of Supreme Court practice. Nor do you usually say, as Kagan did, that the court’s overreach “makes it a danger to a democratic order” when it overturns an executive decision.
Chief Justice John Roberts noticed. And he expressed his disappointment and disapproval: “It has become a disturbing feature of some recent opinions,” he noted, “to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.” He used the rhetorical trick of trying to minimize the damage by insisting it wasn’t that bad after all. “We do not mistake [Kagan’s] plainly heartfelt disagreement for disparagement.” Then he went on to issue a broader warning: “It is important that the broader public not be misled either. Any such misperception would be harmful to this institution and our country.”
Kagan tried to reassure Roberts that “there is surely nothing personal in the dispute here.” But she also doubled down by adding that “Justices throughout history have raised the alarm when the Court has overreached.”
In another example of liberal temperature-raising, Justice Sonia Sotomayor called out the majority in 303 Creative v. Elenis (the case in which a website designer sought to deny service to gay couples) for exempting the designer from civil rights law, which the court had declined to do in 2018’s similar Masterpiece Cakeshop case. “What a difference five years makes,” she wrote. The clear meaning was that, with Trump’s three appointees in place, the court is now satisfying the conservative wish list. Sotomayor then tweaked the new appointees directly, writing that “the brave Justices who once sat on this Court rejected” similar claims.
The tone change isn’t only from the left. Justice Clarence Thomas shattered the norms of judicial collegiality in his concurrence in the Students for Fair Admissions v. Harvard affirmative-action case, attacking Justice Ketanji Brown Jackson, the court’s first Black female justice, in starkly personal terms. In a six-page tirade, he repeatedly ascribed views to Jackson that she did not come close to expressing. His formulations are nothing short of astonishing: “As she sees things, we are all inexorably trapped in a fundamentally racist society.” “Justice Jackson would replace the second Founders’ vision with an organizing principle based on race.” “Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims.”
Jackson didn’t say any of the things Thomas ascribed to her. And justices don’t mischaracterize each other’s opinions in this highly personalized way — not ever. Thomas’s almost-unhinged attack was aimed at Jackson’s apparently unpardonable sin of laying out the history of race-based disparities and using statistics to make her case. Thomas has never before sat on the court with another Black justice, and so has never before had to address arguments about race made from someone who can speak with the same personal authority as he.
For her part, Jackson, in her first term on the court, responded with what might be the classiest line in any Supreme Court opinion I have ever read. She acknowledged Thomas’s tirade only in a footnote. “Justice Thomas’s prolonged attack,” she said, “responds to a dissent I did not write.”
Finally, there are the increasingly sharp disputes on issues that don’t have much ideological weight. In the case resolving a copyright dispute between the Andy Warhol Foundation and a photographer who shot a portrait of Prince, Sotomayor and Kagan, both liberals, went at it hammer and tongs in their majority and dissenting opinions.
Kagan clearly hit a nerve with her dissent, which verged on accusing the majority of philistinism: “It is not just that the majority does not realize how much Warhol added” by his transformative art; “it is that the majority does not care.”
“The dissent would rather not debate the finer points,” Sotomayor shot back from her position as author of the majority. “In tracing the history of Renaissance painting, the dissent loses sight of the statute and this Court’s cases.” The dissent, she predicted, will “not age well.”
Responding to Sotomayor, Kagan added a footnote of her own: “As readers are by now aware,” she wrote, “the majority opinion is trained on this dissent in a way majority opinions seldom are.” She used Sotomayor’s jibes against her: “After all, a dissent with ‘no theory’ and ‘no reason’ is not one usually thought to merit pages of commentary and fistfuls of come-back footnotes.”
None of this is normal.
Of course, as the scorpions-era justices demonstrated, there’s nothing inherently wrong with mutual judicial disdain. Channeled properly, it might even push some to come up with better theories. For observers, sharply worded opinions make reading cases more fun. The late Justice Antonin Scalia’s opinions, especially his dissents, will live on in casebooks partly because of their acid wit.
At the same time, in an era of political polarization and declining norms of mutual respect in civic discourse, there is good reason to think hard about the tone of Supreme Court opinions. That tone will influence how the public sees the court and its members. Will we be better off in a world where there is more contempt for the judiciary? I seriously doubt it.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
