Corruption is tiring...

Tired, testy and fractured: The Supreme Court prepares for more drama

Analysis by Joan Biskupic

As Supreme Court justices try to resolve more than a dozen major cases over the next month, including whether Donald Trump must stand trial for election subversion, they appear mired in antagonism and distrust.

Liberals have been bluntly exposing their differences with the conservative majority and asserting that it is changing the law in America simply because, with new justices, it can. Conservatives, who indeed hold the upper hand on the 6-3 court, nonetheless spike their writing and remarks with derision for the left.

And the court faces an increasingly disapproving public amid a series of self-inflicted controversies over ethics and perceived conflicts of interest – the latest from flags flown at homes owned by Justice Samuel Alito that are often associated with Trump supporters and the January 6, 2021, US Capitol attack.

During their last two weeks of oral arguments, the anger among justices on both sides of the bench was obvious to lawyers and others who regularly attend.

They sounded testy and looked weary. During the scheduled one-hour hearings that often ran twice as long, several justices held their heads in hands. Alito rolled his eyes. Elena Kagan wore a pained expression. Clarence Thomas rubbed his face. In some cases, when Ketanji Brown Jackson, the junior justice, posed her final queries at the end of a clean-up round of questioning, most of the others didn’t look her way.

The larger atmosphere suggested many were simply not listening to each other or respecting divergent views – a pattern bound to make the final sprint of negotiations especially difficult.

As a result, it could be harder for Chief Justice John Roberts to win unanimity, or something close to it, in the controversy over Trump’s demand for immunity. In past challenges to presidential power, whether involving Richard Nixon or Bill Clinton, chief justices have labored toward unanimous rulings.

Personal discord can also make the tone of their written opinions harsher all around, as seen in March in the Trump ballot case from Colorado or Thursday in a racially charged voting case from South Carolina.

More substantively, these differences can stymie compromise. Concurring opinions and competing rationales, as occurred in last week’s dispute over the Consumer Financial Protection Bureau, when five justices split off from the majority in concurring statements, are apt to confuse lower court judges and others trying to understand the legal precedent.

The justices have already stalled on some controversies heard last fall, even as they are now dealing with the new ones argued this spring, including on abortion access, “bump-stock” firearm regulation and homeless encampments.

The South Carolina racial gerrymandering case handed down on Thursday took more than seven months to resolve, and the 99 pages of conflicting opinions showed why. As justices poked holes in each other’s legal reasoning, their words dripped with sarcasm.  

Confronting fellow justices in writing

The current strife is no doubt exacerbated by the unprecedented ideological split of contemporary times. Since the six-justice conservative bloc coalesced in late 2020, it has been driving changes in American life – including the end of constitutional abortion rights – and is likely to further transform the law in cases to be issued through the end of June.

Conservatives will also control any emergency litigation over ballot rules leading up to the November elections.

Liberal justices have been throwing up flares, including in a Louisiana voting rights case earlier this month.

When the court majority allowed Louisiana state officials to use a map with a second majority-Black congressional district (over the protest of a GOP-backed group of White voters), the three liberals dissented.

Justices Sonia Sotomayor, Kagan and Jackson surely favored the outcome of two majority-Black districts (among Louisiana’s six), after a special US district court had found that the state previously diluted the ability of Blacks to elect a candidate of their choice.

But the liberals chose to fully separate themselves from the majority’s action, likely because of the majority’s reliance on the so-called Purcell principle that shuts down litigation as elections approach. (The court, however, has never clarified how close to an election is too close.) Liberals were perhaps distrustful of how the majority might use that easily manipulated principle in potential lawsuits over discriminatory ballot rules in the heat of an election this fall.

That Louisiana case recalled liberal justices’ moves in the Colorado case over whether Trump could be struck from the state ballot because of his role in the riot at the Capitol.

In both cases, there was more common ground than differences, but the liberals chose to accentuate the latter and were admonished by conservative Justice Amy Coney Barrett.

“In my judgment, this is not the time to amplify disagreement with stridency,” Barrett wrote in the March decision. “The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. … All nine Justices agree on the outcome of the case. That is the message Americans should take home.”

But that was not the message liberals chose to send.

True, the nine had unanimously concluded that states lack the power to enforce the 14th Amendment’s anti-insurrectionist provision against a candidate for the presidency and other federal offices. But a five-justice conservative bloc went further and said that only specific legislation passed by Congress could activate the provision.

In their objection, the justices on the left turned an earlier adage of Roberts against his majority: “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” They then quoted a dissenting opinion from the enduringly contentious 2000 case of Bush v. Gore: “What it does today, the Court should have left undone.”

Thursday’s dispute over a South Carolina congressional map produced another ideologically heated series of opinions. The court by a 6-3 vote kept intact a district that favored Republicans and that challengers said unconstitutionally used race as a proxy for district lines. (A lower US court had referred to it as the “bleaching of African American voters” from the district.)

Dissenting liberals emphasized that the decision reversing the lower court undercut a 2017 Supreme Court ruling, Cooper v. Harris, issued before the far-right majority took hold.

“(W)e have seen all this once before—except that it was in a dissent,” Kagan wrote, also referring to the “majority-née-dissent’s reasons.”

Alito, who wrote for the majority, dissected dissenters’ criticism, concluding of Kagan’s 35-page statement that went as long as his 35 pages: “Despite its length, the dissent boils down to six main points. None is valid.”

Another Alito controversy

Alito has been under new scrutiny because of controversial flags flown at his residences in Virginia and New Jersey that suggest sympathy with people who protested Joe Biden’s election win over Trump in 2020. He has declined to respond to questions about a potential conflict of interest, as the justices are weighing two cases arising from Trump-related “Stop the Steal” activities.

Shortly after the US Capitol riot on January 6, 2021, an American flag flew upside down at Alito’s house in suburban Virginia. Such inverted flags were widely used by Trump supporters at the time to protest the election results that validly gave Biden the presidency. Alito said last week he was not involved in flying that flag and and that his wife, Martha-Ann, had put it up

The New York Times this week reported that a second flag embraced by January 6 rioters, known as “Appeal to Heaven,” had been spotted at Alito’s vacation home on the Jersey shore. Alito declined requests from CNN for comment on the upside-down and Appeal to Heaven flags.

On Thursday, when Alito and the other justices took the bench, it was business as usual, including as Alito tersely read synopses from the two cases he had authored. Nothing in the expressions of the full nine betrayed the latest controversy.

Separately, in Kagan’s written dissent in the South Carolina case, she twice described Alito’s approach as “upside-down.” Her opinion was drafted over several months, and it’s impossible to know from the outside when that characterization was added; yet on Thursday, with so much commentary regarding Alito’s upside-down flag still in the air, the phrasing naturally jumped out.

Confronting fellow justices using lawyers as foils

During the recently completed oral arguments, as much as the justices directed their questions to the lawyers at the lectern, it was clear they had something to say to each other.

Kagan and Roberts turned especially confrontational in a dispute over a city’s fines for homeless people who camp on public property.

At issue during the late April proceedings was whether ticketing of homeless persons in Grants Pass, Oregon, amounted to “cruel and unusual” punishment under the Eighth Amendment. A lower US appeals court had ruled that the city’s anti-camping ordinances penalized people for “the mere act of sleeping outside with rudimentary protection from the elements” when they had no alternatives.

“For a homeless person who has no place to go, sleeping in public is kind of like breathing in public,” Kagan said, addressing the city’s lawyer, “I’ll tell you the truth … if you were to come in here and you were to say, we need certain protections to keep our streets safe and we can’t have people sleeping anyplace that they want and we can’t have tent cities cropping up, I mean, that would create one set of issues.”

“But your ordinance goes way beyond that. Your ordinance says as to a person … who has no other place to sleep … that person … can’t take a blanket and sleep someplace without it being a crime.” Kagan repeatedly rebuked the lawyer for evading her questioning.

Roberts tried to undercut Kagan’s line of inquiry focused on sleeping as a human need, as he questioned a separate lawyer, Edwin Kneedler, from the US Justice Department.

“Eating is a basic human function as well that people have to do, just like sleeping,” Roberts said, questioning whether someone who broke into a store to find something to eat could be spared prosecution.

Kneedler said that person would “absolutely” be subject to prosecution because “breaking into a store is a common crime that not everybody engages in, unlike sleeping, which is what we have here.”

“But it’s a necessity for the person who needs food,” Roberts continued. “You’re fighting the hypothetical. I’m saying this person needs food.”

Later in that April week, when Idaho state lawyer Joshua Turner stood to defend its abortion ban against a Biden administration policy that would ensure emergency abortion care, the three liberal justices immediately fired a series of questions at him. They assailed his justifications and drew out the consequences for pregnant women in dire medical situations.

Jackson, Kagan and Sotomayor were not fully in harmony, however; each stepped on Turner’s answers as he was addressing the others’ questions.

“What you are saying,” Sotomayor told Turner at one point, “is that there is no federal law on the book that prohibits any state from saying, even if a woman will die, you can’t perform an abortion.”

The Idaho state attorney objected to that stark conclusion and insisted all states provide “life-saving exceptions.” Sotomayor persisted saying his theory would lead to the worst-case outcome for women in serious medical situations.

Turner again tried to counter her conclusion, but Sotomayor interrupted again.

Roberts, exasperated, cut off Sotomayor, and said to Turner, “Could I hear your answer?”

That provided a momentary breather, but Jackson quickly interjected and justices, liberal and conservative, were firing again.

“Honestly,” Alito complained to Turner, “I think you’ve hardly been given an opportunity to answer some of the hypotheticals.”