“It's gotten heated before—but never this personal or this public,” Sahil Kapur wrote in Talking Points Memo in the wake of the Court’s decision in Schuette v. BAMN, the Michigan affirmative action case decided by a bitterly split Court last week.
There’s no denying the drama of the dueling opinions in Schuette. Justice Sonya Sotomayor’s dissent parodied Chief Justice Roberts’s words in Parents Involved in Seattle Schools v. Seattle School District No. 1: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Sotomayor implied that Roberts was willfully closing his eyes to reality. “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race,”she wrote. “[W]e ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”
In a short, highly unusual concurrence (Kennedy’s plural opinion had already spoken on his behalf), the Chief did not discuss any point of law. His point was solely to complain about dissent. “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality,” Roberts wrote. “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”
Direct? Yes. Bitter? You bet.
Worst ever? Not hardly.
Justices have been roughing each other up for years. Personal dislike? Consider that Justice John H. Clarke resigned from the Court in large part because he found Justice James C. McReynolds so odious. For his part, McReynolds would stand and leave the conference room when Justice Louis D. Brandeis began speaking, and would not pose for the Court’s formal portrait with Brandeis, because he was Jewish.
Passive aggression? Consider Justice Robert Jackson’s concurrence in the denial of rehearing in Jewell Ridge Coal Corp. v. Local 6167, United Mine Workers, published in 1945. The original case, decided 5-4 a few weeks earlier, had concluded that the time unionized miners spent traveling in underground train cars to and from the coal face counted as “work” under the Fair Labor Standards Act, and thus had to be compensated by the mine owner. Justice Jackson had written the dissent, arguing that pay for “travel time” was actually covered under the contract signed by the union, and that the FLSA did not displace that.
After the decision, the mining company took the unusual step of asking the Court to hear the case again, on the grounds that Justice Hugo Black, who had voted in the majority, should have recused himself from the case. (The union’s lawyer, Crampton Harris, had been Black’s law partner two decades earlier.) As Noah Feldman recounts in his book Scorpions: The Battles and Triumphs of FDR’s Supreme Court Justices, Black warned his colleagues that any official mention of recusal “would be a declaration of war.”
Jackson (joined by Justice Felix Frankfurter), undaunted, issued a separate statement when the Court denied rehearing. The Court did not vote on recusals, Jackson said; each individual Justice would decide whether to recuse in any given case. “There is no authority known to me under which a majority of this Court has power under any circumstances to exclude one of its duly commissioned Justices from sitting or voting in any case.” In other words, you might think that Justice Black shouldn’t have sat on this case; we couldn’t possibly comment. The next year, Jackson sent a memo to two Congressional committees explicitly accusing Black of a conflict of interest, and warning that if something similar happened again, “I will make my Jewel Ridge opinion look like a letter of recommendation by comparison."
Personal, emotional tone? Consider Justice Frankfurter’s dissent in West Virginia Board of Education v. Barnette. Laws in a number of states required all school children to recite the Pledge of Allegiance; Jehovah’s Witness children refused. They considered the Pledge a violation of the Second Commandment. A few years earlier, the Court had decided that the salute requirement did not violate the First Amendment’s guarantee of the “free exercise” of religion. Frankfurter had written that opinion. Widespread persecution of Witnesses and their children followed. In Barnette, the majority now held that the flag salute laws violated the First Amendment guarantee of freedom of speech.