When he took office, he expressed his desire to put aside the pettiness of politics. He would make it a point, he said, to do away with the destructive divisions of partisanship. He would make it his mission, he told us, to rise above it all—to get things done for the good of the people, and the good of American democracy.
That guy—that hopeful, earnest, sadly Sisyphean guy—was President Obama. Or perhaps it was Bush 43, or Clinton, or Bush 41. It could also, however, have been John Roberts. After his first term as Chief Justice of the Supreme Court, Roberts told Jeffrey Rosen, a legal scholar and contributing editor at The Atlantic, of his intention to take the partisanship out of the body that strives, more than the other branches, to be above politics. “Politics are closely divided,” Roberts noted. “The same with the Congress. There ought to be some sense of some stability, if the government is not going to polarize completely. It’s a high priority to keep any kind of partisan divide out of the judiciary as well.”
This week made it official: That effort has failed.
With the landmark rulings it issued on the fate of the Affordable Care Act and Constitutionality of same-sex marriage, the Court—the body in which “the judicial power of the United States” is broadly vested—has reached a new nadir of partisan rancor. The Justices didn’t simply disagree on the outcomes of cases; they disagreed on the cases’ moral premises. They disagreed on their own roles in deciding what those premises might be. They descended, as a body, into a kind of judicial chaos, throwing up their hands beneath their heavy robes.
Here is a section of Antonin Scalia’s dissent against the majority finding, in favor of same-sex marriage, in Obergefell v. Hodges:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
Here is a section of his dissent from the majority finding in King v. Burwell:
Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an “Exchange established by the State.” This Court, however, concludes that this limi- tation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare.
SCOTUScare! These pieces of writing and rhetoric were generally greeted, in the media, with a kind of thirsty delight. CNN listed “the best lines from Antonin Scalia's Obamacare dissent.” US News and World Report offered its audience the opportunity to “Read the Best Quotes From Today's Obamacare Ruling.” Vanity Fair compiled “The Bitchiest Quotes from Scalia’s Gay Marriage Dissent.” The New Republic rated Scalia's rage on a scale of flame emoji. TV news programs and radio shows across the land filled their air with sound-bitten Scalia scorn.
The justice’s characteristically avuncular dissents, however, aren’t just the stuff of a grumpy old man being a grumpy old man, or of the understandable frustrations of finding oneself suddenly in the minority, or of the engagement of a long-serving arbiter of American jurisprudence in some sick burns. The Scaliaisms, sure, are evidence of anger; they’re also evidence, more worryingly, of a new kind of nihilism that has creeped into the Court. They’re evidence that partisanship, contra Roberts’ early and perhaps naive hopes, hasn’t been expunged from the Court. That partisanship has, instead, infiltrated it.
Look at the logic of Scalia’s dissents—the rhetoric behind the justice’s Jabberwockian language. What he is saying, basically, is that his fellow jurists first made a decision (that they wanted Obamacare to carry on) and then fabricated legal justifications for their opinions. He is accusing them, basically, of operating in bad judicial faith. He is also accusing them of being stupid.
And, though Scalia is the most prominent and arguably the most media-savvy of SCOTUS’s scorn-hurlers, he is by no means alone in his scorched-earth approach. Elena Kagan, objecting to the Court’s controversial decision to allow sectarian prayer before legislative sessions, accused the majority of a kind of double fault. “First,” she wrote, “the majority misapprehends the facts of this case, as distinct from those characterizing traditional legislative prayer. And second, the majority misjudges the essential meaning of the religious worship in Greece’s town hall, along with its capacity to exclude and divide.”
Kagan had perhaps been especially miffed about the ruling, Slate’s Dahlia Lithwick speculated, because Samuel Alito had previously dismissed her concern for members of minority religions was “really quite niggling.”
The vitriol can be petty; it can also be grand. Justice Kennedy’s defense of marriage in the majority opinion in Obergefell v. Hodges claimed, essentially, that to be against same-sex marriage was to be not just on the wrong side of history, but the wrong side of morality. “No union is more profound than marriage,” Kennedy wrote, “for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” He invoked “equal dignity in the eyes of the law.”
This—a claim not just of legality over illegality, but of right in every sense of the word—may have been Scalia’s version of “really quite niggling.” Scalia remarked of Kennedy’s writing, in his dissent:
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the court to do so. Of course the opinion’s showy profundities are often profoundly incoherent.
Eeesh. This is not the stuff of respectful, even rancorously respectful, disagreement. This is instead the stuff of seething angers (“pretentious,” “egotistic”) and sweeping animosities (“showy profundities” that are “often profoundly incoherent”). It is the stuff of washed hands and burnt bridges.
As Sonia Sotomayor put it in a talk to young lawyers last month, “If you read some of our decisions, you know that we can be nasty to each other.”
Which is, on the one hand, unsurprising. The Court is composed, like any government body, of humans, and is therefore subject to humanity’s attendant faults and frailties. And the justices are appointed—Roberts’ sweeping aspirations toward extra-partisanship aside—not despite their politics, but because of their views. As Ezra Klein pointed out, reacting to the Obergefell ruling, the high stakes of the Court’s makeup, and the fact that so much can hinge on a death or illness of a Justice, have “led to perverse incentives within the political process”:
Political parties are terrified of appointing a justice who later betrays them—either through ideology or simply through mortality—and so they vet candidates harder for political fit, and constrict their selection to younger candidates who are likely to hold their seat for many decades.
Still, though. Political differences need not be political divisions. Just as ideological differences need not be the cause, or the result, of personal acrimony. (cf. Scalia and Kagan, duck-hunting duo.) That opinions and dissents are now operating at the heights of moral messaging and the depths of ad-hominem attack is a relatively recent phenomenon—one that has a metaphor, if not a full analogue, in the bitter divides that have become so familiar in other branches of government. SCOTUS is acting like Congress.
That may be in part because of its docket. The Court’s 2013 term, Garrett Epps noted last year, included particularly political cases, considering the fraught subjects of campaign finance, public-employee unions, and contraceptive coverage under the Affordable Care Act. In all three cases, the voting followed the Court’s partisan makeup: The five Republican appointees voted one way; the four Democratic appointees voted the other. In 2014’s Hobby Lobby decision, notably, it was Sonia Sotomayor who adopted the Scalian mantle, accusing her fellow Justices of acting in bad faith. “Those who are bound by our decisions usually believe they can take us at our word,” she wrote, with a tone of equal parts anger and lament. “Not so today.”
As a result, Epps wrote: “On the Roberts Court, for the first time, the party identity of the justices seems to be the single most important determinant of their votes. The five Republican justices sometimes divide in cases (such as the scope of the federal Treaty Power or the validity of ‘buffer zones’ around abortion clinics) that spawn purely ideological debate. But they are united and relentless in pushing for victory in cases that have a partisan valence.”
This week proved how prescient Epps’s observation was. The Court was meant to be debating the role of the federal government in the twin intimacies of our physical health and our expressions of love. Instead, though, its members talked over each other. They flung insults. They assumed the worst. “The stuff contained in today’s opinion,” Scalia sneered in his reaction to his colleague, “has to diminish this court’s reputation for clear thinking and sober analysis.” You could say the same thing, though, about the stuff contained in that day’s dissent.