U.S. Supreme Court members (first row L-R) Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John Roberts, Associate Justice Anthony Kennedy, Associate Justice Ruth Bader Ginsburg, (back row L-R) Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito and Associate Justice Elena Kagan pose for photographs in the East Conference Room at the Supreme Court building October 8, 2010 in Washington, DC.National Journal

This article is from the archive of our partner National Journal

A month after wrapping up one of the most monumental terms in the Supreme Court's history, the justices are still divided—not just about specific cases, but over what their rulings meant for the Court and the country.

A handful of justices have given interviews or made public appearances since the end of the term. And those comments have outlined sharply different views of what, exactly, happened at the end of June—when the when the Court's liberals won a string of high-profile cases on congressional redistricting, fair housing, Confederate license plates, Obamacare, and same-sex marriage.

Justice Samuel Alito, for example, thinks the courts are now "at sea" on a fundamental constitutional question, thanks to the Supreme Court's ruling on same-sex marriage. Justice Anthony Kennedy, who wrote that decision, predicted that the storm over marriage will die down as the Court rebuilds its "deposit of trust" with the public.

Justice Ruth Bader Ginsburg, meanwhile, reflected on the strategic maneuvering that helped nudge the Court toward what many experts see as its most liberal term in years.

The justices almost always head into their summer break on a divided note, because they tend to issue their most controversial decisions last. This year's litany of hot-button cases ensured that the end of this term would be particularly tense. And those divisions haven't necessarily healed since the justices left for their summer vacations, speaking tours, and teaching gigs.

In an interview last week with conservative commentator Bill Kristol, Alito said the Court's approach to same-sex marriage could ultimately damage its "legitimacy" with the public and that it had opened up a Pandora's box of legal uncertainty that could have troubling consequences.

"We are at sea, I think. I don't know what the limits of substantive liberty protection under the Fourteenth Amendment are at this point," he said.

Alito said the Court's view of "liberty" was too broad—not only in that the Court was wrong about same-sex marriage but that the rationale behind its decision was too malleable.

"The Court's conception "¦ is a very postmodern idea," he said. "It's the freedom to define your understanding of the meaning of life; it's the right to self-expression. So if all of this is on the table, where are the legal limits on it?"

Those limits are important, he argued.

"If a libertarian is appointed to the Supreme Court, is it then proper for the libertarian to say: 'Well, I think there is a right to work for less than the minimum wage. I think there's a right to work as many hours as I want without being limited by the government. I think I have the right to build whatever i want on my property, irrespective of zoning laws,' and so forth? If a socialist is appointed to the Supreme Court, can the socialist say, 'I think liberty in the 14th Amendment means that everyone should have a guaranteed annual income or that all education through college should be absolutely free,' or whatever? There's no limit."

Alito's hypotheticals have some basis in precedent: The Supreme Court did rely on the Constitution's "liberty" guarantees, around the turn of the 20th century, to strike down laws that banned child labor, imposed a minimum wage, and regulated the length of the workweek.

Part of the Court's rationale in those decisions was that the Fifth and Fourteenth Amendments guaranteed "freedom of contract," including contracts to work for any amount of money. Those decisions were later reversed, and judges and lawyers on both sides of the ideological divide have come to see them as a legitimate example of judicial activism.

Alito described the Court's same-sex marriage as another such example.

"It raises questions of legitimacy. It raises practical questions, because the more the Court does this sort of thing, the more the process of nomination and confirmation will become like an election, will become like a political process," he said.

But Kennedy, who wrote the Court's same-sex marriage decision, said it's not necessarily so bad for the Court to reflect some of the same real-world factors that more frequently play out in elections.

"That's the constitution most people look at when they look at the United States. They say: 'What kind of people are these? How do they behave? What are their traditions and customs, their rules regarding the dignity they accord to their fellow citizens?'" Kennedy reportedly said in his first public comments since the end of the term. "And the more the big 'C' Constitution relates to the small 'c' constitution, the stronger a decision is. The stronger we are."

He also drew a different historical parallel, comparing his opinion on same-sex marriage to his ruling, in 1989, that the First Amendment protected flag-burning. The controversy over that decision faded over time, he noted.

"Eighty senators went to the floor of the Senate to denounce the Court," he said. "President Bush took the week off and visited flag factories, but I noticed that after two or three months, people began thinking about the issues."

The Court's same-sex marriage decision was perhaps the most dramatic example of a trend that echoed throughout the term—sharp disagreements among the justices that sometimes veered into personal criticisms.

Justice Antonin Scalia took several shots at Kennedy in his dissent from the Court's same-sex marriage ruling, calling the majority opinion "pretentious" and "egotistic" and saying its writing resembled the "mystical aphorisms of the fortune cookie."

All four of the justices on the losing side of the same-sex marriage case wrote their own dissents. But the Court's liberal bloc rarely displayed such internal fractures, largely avoiding multiple dissents as well as concurring opinions.

That was a strategic choice, Justice Ruth Bader Ginsburg revealed in an end-of-term interview with NPR—one that grew out of the Court's fractured decision, including four separate dissents, in Bush v. Gore.

"We agreed, when we are in that situation again, let's be in one opinion. "¦ If you want to make sure you're read, you do it together, and you do it short," she said.

Ginsburg predicted that the Court's conservatives will follow her side's example.

"Why each of the [conservative] prime dogs found it necessary to do his own thing? "¦ Next term, I think you'll see some of my colleagues will be more disciplined," she said.

This article is from the archive of our partner National Journal.

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