Fresh off their most partisan ruling since Bush v. Gore, the justices face a docket and a vibe that are still taking shape.
When we last left our merry little band of renown, the justices of the United States Supreme Court were scrambling to get out of Washington, scrambling to make their speaking and teaching arrangements overseas, having just dumped upon a frantic nation 193 pages of fur and teeth called National Federation of Independent Business v. Sebelius, otherwise known as the federal health care ruling. The Affordable Care Act, we now know, will stand as law, at least for now. What becomes of the Roberts Court from here, however, is anyone's guess.
As the 2012-2013 term begins, the justices for the first time in a long time will labor under the unmistakeable impression that all is not rosy in their midst. Sure, they have said all the right things in their public appearances over the summer. Those justices who have cared to comment on reports of recriminations at the Court have declared that they all get over their most contested cases far sooner than the rest of us do. "If you take this stuff personally," Justice Kagan told folks at the University of Michigan earlier this month,"this is going to be a long life tenure."
Indeed it will be. For centuries now, we've heard how Court collegiality has kept the institution inured from the political passions it stirs with its decisions. The problem for the justices this time around is that their proclamations of good cheer are directly contradicted by reporting from two of the Court's most closest chroniclers. And not just the kind of reporting most of us do when we report on the Court -- from the outside looking in -- but rather the kind of reporting that only a few journalists ever get the chance to do; an inside job, you could say.
From the right, CBS News Chief Legal Correspondent Jan Crawford wrote in early July about how Chief Justice John Roberts alienated his conservative colleagues when he saved the Care Act. From the left, Jeffrey Toobin, the CNN analyst and New Yorker writer, confirmed the essence of Crawford's account in his new book. Toobin reported that Justice Antonin Scalia was "furious" and "enraged" at his conservative colleague. Crawford's report indicated that the chief justice's fellow conservatives were so disgusted with his opinion in the health care case that they refused even to join him in those parts of the opinion with which they agreed.
The Court's conservatives are poised to finish off once and for all the concept of affirmative action in academia.
So when the justices emerge Monday morning into open court, when they start off another term with a case about corporate liability under the Alien Tort Statute, they surely understand that their public demeanor will be scrutinized more than ever. We all have read the reports which suggested that the chief justice winced last term when Justice Scalia went off on an unscheduled rant about an Obama immigration initiative which had nothing to do with the case before him. Now, we'll all be watching to see whether we can discern more.
Hey, kids, this is how Western observers used to try to figure out what was happening within the Kremlin! Journalists and diplomats would watch the facial expressions of the men in overcoats as they watched the troops and tanks roll by. Now that same sort of scrutiny will be applied to the justices. Whether they are self-conscious about this, and whether it ultimately impacts their public or private interactions with one another, is something we'll be better able to gauge next June, when they put another term behind them.
But you don't want to read about inside baseball. You want to know what's on the docket. Alas, what's on the docket today, even after the Court accepted six new cases this past Wednesday, is only about half of what the justices will decide between now and June. So previewing the Court term this year is a little like previewing a play that is only half written. Will this be a term like last term, one for the ages? It depends. It depends on how aggressive the justices are in reaching out to take big-ticket social cases.