“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.
Frankfurter was still convinced he had been right. His dissent in Barnette began in anguish:
One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime. But . . . [a]s a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard.
Open warfare? Chief Justice Earl Warren in 1961 berated Frankfurter in open court for the tone of a dissent from the bench: “As I understand it,” the Chief said to a shocked audience, “the purpose of reporting an opinion in the courtroom is to inform the public and is not for the purpose of degrading this court.”
But for my money, the all-time world’s record for and-the-horse-you-rode-in-on mean goes to Justice Antonin Scalia for his attack on Justice Harry Blackmun in a dissent in Planned Parenthood of S.E. Pennsylvania v. Casey, decided in 1992. Conservative justices expected to overturn Roe v. Wade. But at the last minute, Justice Anthony Kennedy joined a plurality opinion jointly written by Justices Sandra Day O’Connor, David Souter, and Kennedy that “reaffirmed” a watered-down version of Roe.
Although Scalia had harsh words for the plurality, he reserved his bitterest invective for Blackmun, the original author of Roe. At the end of his dissent, he wrote:
There comes vividly to mind a portrait by Emanuel Leutze that hangs in the Harvard Law School: Roger Brooke Taney, painted in 1859, the 82nd year of his life, the 24th of his Chief Justiceship, the second after his opinion in Dred Scott. . . . There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the lustre of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case—its already apparent consequences for the Court, and its soon-to-be-played-out consequences for the Nation—burning on his mind.
It was and is standard pro-life legal rhetoric to compare Roe to Dred Scott, the Court’s most disastrous failure. But Scalia’s dissent was not a mere critique of a decision. When it was written, Blackmun was 83. (In case anyone missed it, Blackmun wrote a separate opinion concluding, “I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today.”) At the time of Casey, conservatives confidently expected to hold the White House, and name justices, for a generation to come. Scalia’s dissent seemed to say to Blackmun, we will bury you.
Nothing in last week’s exchange of pleasantries rivals one justice’s taunting another with his approaching death. In fact, observing from the outside, this Court seems far more collegial to me than was the Rehnquist Court. The justices disagree, but they seem to enjoy each other most of the time.
Of course, the youngest justices have plenty of time to nurture quarrels. Years from now, we may look back on the Schuette exchange as part of a golden time of civility.