Opinion: These Fractures in the Supreme Court Threaten to Sink It


The Supreme Court’s once immaculate surface is fracturing before our eyes. It may be hard to identify where or when the damage began, but the source is obvious. It’s the justices themselves.

At the most recent Supreme Court Historical Society Dinner, both Justice Samuel Alito and Chief Justice John Roberts were surreptitiously recorded by Lauren Windsor, a documentary filmmaker who baited both justices by making very pro-conservative remarks. Alito took the bait hook, line, sinker, and maybe some of the fishing rod. According to Rolling Stone, the annual dinner is known as an opportunity “for right-wing activists to buttonhole Supreme Court justices.” This in and of itself makes it a questionable event for the supposedly non-partisan high court, but it also explains why Alito apparently felt quite safe in sharing how he really feels. He told Windsor that between the right and left ideological positions “one side or the other is going to win” and that “there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So it’s not like you are going to split the difference.” Alito went on to agree that there is a need to return the country “to a place of godliness.”

Alito’s views may come as no surprise, but we should be surprised and shocked at how comfortable he is at stating them out loud in public. This was not a surreptitious recording made in a private moment. It was a sitting Justice speaking to the public at a public event, asserting his view that the ideological differences in cases he listens to cannot be subject to compromise. Glaringly absent is any reference to the law, the “calling balls and strikes” metaphor that is so often used about what the justices are supposed to be doing. Rather, he sounds like a zealot who believes that only one side of these cases has God on their side. It’s impossible to imagine that Alito’s view could allow him to apply the law dispassionately.

In contrast, Chief Justice Roberts adhered to the central casting image for a Supreme Court Justice when recorded. He disagreed with Windsor that the court should have a role in steering the country’s morality and even disagreed with the idea that we are a Christian country. Parroting politically correct jargon—albeit a little out-dated—Roberts used the equivalent of “some of my best friends are Muslims and Jews” to disagree with the characterization of America as a “Christian nation.” The contrast between Roberts and Alito exposes a chasm between the espoused public views of the justices. It’s hard to see how the law can bridge that ideological chasm which calls into question just how the court can function.

But Roberts’ cliches about the court’s role aside, he could not help but reveal a huge blind spot in his awareness about history and the role of the high court when he minimized the polarization that the nation is experiencing. He cites other times in history, like the Vietnam War era or the Civil War, that were also tumultuous, his message being “nothing to look at here” and this too shall pass.

But Robert’s assertion is either painfully naïve or deliberately misleading, because much of the tumult in the country and the court is not due to some world event like a war or even a great movement like the Civil Rights movement. No, the tumult is due to the court itself. It comes from the recklessness of the conservative majority in overturning precedents like a woman’s right to abortion that had stood for a half-century. It comes from the court refusing to acknowledge the glaring conflicts of interest presented by justices accepting hundreds of thousands of dollars, if not more, in gifts and benefits from benefactors with cases before them. It comes from Alito believing his wife can fly flags that are symbols of the extreme right at his homes, and it comes from Roberts refusing to testify about ethics before Congress under the baseless rationale that it would violate the separation of powers structure of the Constitution.

By this behavior, the court encourages such actions as Louisiana passing a law that the Ten Commandments must be displayed in every public school classroom. Such a law likely would not even have been contemplated but for the court shouting out its conservative majority’s willingness to take on radical causes.

Even the opinions themselves reveal the growing instability of the institution. In recent reporting, Politico pointed out how right-wing Justice Amy Coney-Barrett was criticizing fellow right-winger Justice Thomas’ use of originalism. In a remarkable concurrence over a trademark case, Barrett criticized Thomas’ analysis by noting, “It presents tradition itself as the constitutional argument… Yet what is the theoretical justification for using tradition that way?” She added that “relying exclusively on history and tradition may seem like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test.”

These are strange words coming from an originalist like Barrett, but it likely signals the break between the vigor of her youthful analysis— perhaps shared by Justices Gorsuch and Kavanaugh— and the staid embittered old-man ideology of Alito and Thomas. The young Turks of the court may want their work to be better rooted in legal analysis than raw revisionist history. That hardly means that Barrett, Kavanaugh or Gorsuch will be the saviors of the court. On the contrary, it signals that even jurisprudential analysis seems in disarray.

Here’s the thing about fractures. They can start with just a tiny crack, but once the structural integrity is compromised, the whole thing collapses.

This post was originally published on Daily Beast

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