The Supreme Court Justices Have As Much Contempt For Each Other As The Rest Of America Has For Them

(Photo by Collection of the Supreme Court of the United States via Getty Images)

Things aren’t great at One First Street. After a majority of the Supreme Court thumbed its nose at precedent in Dobbs v. Jackson Women’s Health, there’s been a bit of a downward spiral. The Court’s public approval rating is in the toilet and justices themselves are questioning the legitimacy of the institution. And not some gentle prodding. Nope! See, after Chief Justice John Roberts gave a desperate plea, practically begging folks to see the Court as legitimate, Elena Kagan gave a speech pretty much in a direct response to Roberts, admitting just how bad things are.

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Now Steven Mazie is detailing in The Atlantic how the clear political divisions at the Court have soured into contempt. And it’s showing during oral arguments. For example, during oral arguments in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina (the challenge to affirmative action), Mazie says the justices have dropped their “charade” of congeniality.

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Justices Clarence Thomas and Sonia Sotomayor — sitting next to one another yet at opposite sides of the political spectrum — “paid each other no attention” during the argument. Meanwhile, Neil Gorsuch “raised an eyebrow in apparent derision when [Sotomayor] asserted that segregation continues to plague American society in 2022.” Even Roberts who tried to appear, as he often does, “affable and open-minded,” broke his facade and “ended up holding his face in his right hand, taking in lawyers’ defenses of racial preferences with waning patience.”

And it gets worse:

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In 2016, when this question was last brought before the justices, Thomas had said nothing during oral argument. But he was now contemptuous of the idea that diversity is valuable—or even a coherent concept. It seems to him, he said with a look of consternation, that diversity is just “about feeling good and all that sort of thing.” (Maybe I’m “tone deaf,” he added.) Kagan, meanwhile, was incredulous that the plaintiffs apparently believed that “it just doesn’t matter if our institutions look like America.” She opened her eyes wide and said, “I guess what I’m asking you is, Doesn’t it? … These are the pipelines to leadership in our society!”

But it isn’t just affirmative action that’s showing how threadbare the Court’s become. We all know that in 303 Creative LLC v. Elenis, Justice Samuel Alito lost his ever loving mind over his fear of a Black Santa and questions about JDate. But Mazie points to how Alito, always a “formidable interrogator,” has turned “imperious.” Writing of his demeanor in the oral argument, “He slapped the bench as he asked his questions, firing them relentlessly and—this is new—sometimes sloppily.”

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What’s more, in cases that are not politically divisive, the justices are able to “keep civil and carry on.” But all bet’s are off if there’s a political hot button on the table, or, erm, docket.

But when ideologically divisive issues appear on the docket, the agitation bubbles up. In any other workplace, a manager would be concerned about the impact of such fractured relationships on the ability of a nine-member team to work together productively. The worry is more urgent when the testy interpersonal dynamics are among members of the nation’s highest court.

So the Supreme Court is letting the divisiveness that’s become a feature of modern political discourse define the judicial branch. Yeah, I’m sure that won’t play a key role in the decline of the American republic.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

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Clarence Thomas, Courts, Elena Kagan, John Roberts, Samuel Alito, Sonia Sotomayor, Supreme Court