Midway through one of the most significant terms in decades, Supreme Court justices are publicly clinging to collegiality and protecting the institution of the court as they wade through the bitterest of political issues.
“We must work together,” Justice Sonia Sotomayor said recently during a podcast with the comedian Conan O’Brien to promote her latest book. She said that despite their differences on the bench, the justices find common ground in life. They engage passionately in their opinions but are “still human beings with one another,” she said.
“I do wish the country would take more note of it,” she finished.
But what the country is taking note of is what the justices are actually saying on paper, where the veneer of civility has worn thin as the liberals’ criticism of conservative opinions – and the conservatives’ responses – have extended beyond usual disagreements centered on judicial ideology.
The liberals are calling out the conservatives not just for their views on the issues, but for the perceived erosion of the court’s norms, including an inconsistent use of the emergency docket.
Monday night, for instance, when the 5-4 court paused a significant lower court opinion concerning voting rights, the liberals lashed out, complaining that the conservatives had acted prematurely, without the benefit of oral arguments and extensive briefing on an issue that would impact the political power of Black voters.
And earlier in the term, the left side of the bench castigated the majority for allowing a novel Texas six-week abortion ban to remain in place – even though it directly contradicted Supreme Court precedent and was written with the express intent to dodge federal court review. When the majority declined a request from abortion providers to allow what was left of their case to be sent back swiftly to the trial judge, Sotomayor did not mince her words in dissent.
“This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies,” she wrote.
The fact that Sotomayor called out the majority for disregarding the rule of law – the ground rules that govern the entire operation of the legal system – is as strong a criticism as a justice can muster and one not usually seen in high court writings.
“What the Democratic appointees are saying in these two cases is that the court is abandoning the general rules of the game – how litigation is supposed to work – in its eagerness to reach particular results,” Leah Litman a professor at the University of Michigan Law School said in an interview.
“If the court is going to no longer abide by its rules than there are no rules and we’ve lost the rule of law,” Litman said.
Voting rights fight
Monday night’s order concerned an application from Alabama asking the justices to freeze a lower court opinion that had invalidated the state’s congressional map. A three-judge panel of federal judges – including two Donald Trump appointees – had held that the current map likely violated the Voting Rights Act and diluted the power of Black voters.
In a 5-4 decision, the justices granted Alabama’s request to pause the lower court opinion and allow the Republican-drawn map to remain in place for the primaries, and likely, the midterms.
Only Justice Brett Kavanaugh, joined by Samuel Alito, explained his thinking. Kavanaugh said that he had acted to maintain the status quo, in part because federal courts should not enjoin state laws “in the period close to an election.” (Primary elections begin – via absentee voting – on March 30.)
Kavanaugh maintained that by allowing the Republican-drawn map, the court was not making “any new law” regarding the Voting Rights Act. He said he was taking “no position at this time on the ultimate merits of the parties’ underlying legal dispute” and that the merits of the case would be handled when the court heard oral arguments sometime next term.
Left unsaid was the fact that map that was invalidated by a lower court as running afoul of the Voting Rights Act will be in place for the upcoming elections.
“However one describes what the court has done, the effect of the court’s action here is to sanction – at least in the short term during a very important election cycle – what appears to be egregious vote dilution,” Amanda Tyler, professor at University of California, Berkeley School of Law, said in an interview.
Kagan, writing for her liberal colleagues, blasted the decision, saying that under normal circumstances when a party asks the court to put a lower court opinion on hold it argues that the lower court had made a mistake under existing law, but that didn’t happen here.
“The district court here did everything right under the law existing today,” Kagan stressed. She batted away Kavanaugh’s contention that it was too late to draw new maps noting that the general election is still around nine months away. “Alabama is not entitled to keep violating Black Alabamians’ voting rights just because the court’s order came down in the first month of an election year,” she said.
But then she pivoted to something else. She referred to the fact that the court had granted Alabama’s request on an emergency basis. The emergency docket is often referred to as the “shadow docket” because the applications are decided without the usual extensive briefs and oral arguments. Kagan suggested that the court should have left the lower court decision in place, at least until there had been the usual rigorous briefing schedule, oral arguments and a decision on the merits.
“Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument,” she said. She added that by reversing a “careful” and “exhaustive” lower court decision, the majority upset the way challengers have sought to prove vote-dilution claims for decades.
“That is a serious matter, which cannot properly occur without thorough considerations,” she charged.
Her allegations prompted a rebuke from Kavanaugh, who also happens to sit next to Kagan on the bench.
In his opinion he said that Kagan’s “catchy but worn-out rhetoric about the ‘shadow docket’” is “off target.”
He said that Kagan was “wrong” to claim that the court’s stay order “makes any new law” regarding the Voting Rights Act and criticized the dissent’s “mistaken rhetoric.”
But Kagan ended her opinion with a flourish. She emphasized that the court had done a disservice not only to Black Alabamians but also to “our own appellate processes” which, she said, “serve to both constrain and to legitimate the Court’s authority.”
In a separate dispute that played out last fall and early winter, the Supreme Court allowed a Texas law that bars abortions after six weeks to go into effect even though it directly contradicted Supreme Court precedent. In that dispute, the court did agree to hold expedited oral arguments instead of acting off of the shadow docket.
On December 10, the justices issued their decision. The majority allowed the law to remain in effect, but it did offer a narrow path forward for providers to sue certain state officials in an attempt to block enforcement. It was a devastating loss for supporters of abortion rights who wanted the court to block the law entirely.
Sotomayor, writing for her liberal colleagues, charged that the Texas Legislature – for nearly three months – had “suspended a constitutional guarantee” and that the Court “should have put an end to this madness months ago.”
But in the end, she said that her “disagreement with the Court runs far deeper than a quibble” over how many defendants the providers could sue.
Her complaint with the majority’s action transcended usual ideological differences. In her mind, the majority had greenlit a state law that was specifically designed to “nullify federal constitutional rights.”
Justice Neil Gorsuch – joined by Samuel Alito, Brett Kavanaugh, Amy Coney Barrett and Clarence Thomas dismissed her concerns. “Justice Sotomayor charges this Court with shrinking from the task of defending the supremacy of the Federal Constitution over state law,” he said.
“That rhetoric bears no relations to reality,” Gorsuch wrote. He noted that it was possible to challenge the law in state courts for example.
“The truth is, too, that unlike the petitioners before us, those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments,” he added.
Chief Justice John Roberts
Roberts – no liberal – played an interesting role in both cases, casting his vote with the liberals.
In the redistricting case, Roberts said that the three-judge panel had “properly applied existing law in an extensive opinion with no apparent errors for our correction.”
That was Roberts’ way of saying that Alabama had not met the threshold for a stay and the majority should not have granted one. Which isn’t to say that Roberts won’t vote in favor of the state when the full dispute actually lands before the court next term. Roberts did not join the liberals in their criticism of the shadow docket.
In the abortion decision, he wrote his own dissent, joined by the liberals. He focused on the fact that the law amounted to a scheme with the “clear purpose and actual effect” of nullifying rulings of the Supreme Court.
Looking past the case at hand he said: “The nature of the federal right infringed does not matter.”
“It is the role of the Supreme Court in our constitutional system that is at stake,” he said, directing his conclusion to his conservative colleagues.