Members of the U.S. Supreme Court predict that any rifts among justices in the wake of the landmark health care decision are likely to heal quickly and that collegiality will return when the Court reconvenes for its next term.
“Everyone here does have the sense the institution is so much more important than the nine who are here at any point in time and we should not do anything to leave it in worse shape than it was in when we came on board,” said one justice, speaking on condition of anonymity to The National Law Journal as the Court term was ending. The end of the 2011-12 term was “certainly hard,” this justice said, but added, “My guess is we’ll come back in the fall and have the opening conference and it will be almost the same. I would be very surprised if it’s otherwise.”
Speaking generally, another justice said, “The term always starts friendly and relaxed, and gets tense at the end when the most difficult cases pile up. It’s still collegial, but there is an overlay of frustration.”
Recent leaks following the justices’ split decision upholding the Affordable Care Act contend that discord at the Court is “deep and personal” with long-lasting effects, in the words of CBS News correspondent Jan Crawford. The dissenters’ anger is directed primarily at Chief Justice John Roberts Jr., who, according to the unnamed sources, voted with the Court’s moderate-liberal members after initially siding with his conservative colleagues to strike down the so-called individual mandate.
While not discussing vote splits or internal disputes, the justices interviewed portrayed the Court as an institution that overcomes friction quickly and returns to its long-standing amiability. Justices take pride in the fact that both the Rehnquist and Robert courts have been considered the most collegial Supreme Courts in modern times. From all points on the ideological spectrum, justices say without hesitation that they never hear a raised voice or unkind word at their private conferences.
That does not mean that disagreements among justices are superficial or trivial. But even after contentious terms of the Court, justices say that the summer recess and the press of new work heals wounds. In explaining this point, justices interviewed by the NLJ pointed to two particularly difficult moments in recent Court history.
One was the end of the 2006-07 term, regarded as the high — or low — point for divisiveness since Roberts became chief justice in 2005. The Court’s liberal wing had lost more than half a dozen high-profile cases on issues such as school racial diversity, abortion and religion. Few Court observers will forget Justice Stephen Breyer’s summary from the bench of his passionate dissent in the Seattle and Louisville school race cases.
And yet the Court returned the following October with no after-effects visible to observers. “People move on,” a justice noted.
Another justice cited the tense climate after the 2000 decision in Bush v. Gore. The ruling, which decided the presidential election, was issued during the Rehnquist Court, and the dissenters included the Court’s liberal wing. Concern about the ability of the justices to work collegially was felt “most notably” after that decision, said this justice.
“But there wasn’t much time after that case came out, and we were gearing up for the next sitting [of cases to be argued]. Life goes on.”
Last summer, in a series of interviews with an NLJ reporter, a number of justices agreed with the assessment that relationships are strong and positive on the Roberts Court
“When you arrive, it’s apparent they’re all friends,” said one justice. “They disagree passionately sometimes, but don’t take it personally. And when you’re put in that environment, you tend to behave the same way. I can’t imagine the Court when William O. Douglas and Felix Frankfurter were on it, and they wouldn’t speak to each other.”
Court historian Melvin Urofsky said Frankfurter would “harangue” his fellow justices at conference for 45 minutes at a time — the length of his former Harvard Law School classes — and Douglas would just get up and leave.
Another current justice asked, “Who on the Court is the sort of person who is going to carry a grudge? Nino Scalia isn’t going to carry a grudge. Clarence Thomas is going to pat you on the back and give you a hearty laugh all the time. That’s a big part of it.”
YEARS OF INVECTIVE
All of which may make the possibility of long-term fallout among the justices because of the Affordable Care Act decision less likely. “If they managed to get over Bush v. Gore, they surely should manage to get over this,” said Harvard Law School’s Laurence Tribe.
The latest report by CBS’s Crawford said, “Some people say you would have to go back nearly 70 years to see this kind of tension, and almost bitterness, that now exists among the justices.”
Going back 70 years is a return to the Court of Douglas, Frankfurter, Robert Jackson and Hugo Black. As Noah Feldman describes in his book Scorpions, those were years of bitter rivalries and invective among those justices.
Eventually, Urofsky said, disagreements usually get smoothed over and hostilities cool. “Even Frankfurter and Black patched things up,” he said. “Rehnquist and [Thurgood] Marshall couldn’t have been more opposite, but they used to play practical jokes on clerks.”
Justices realize that with life tenure, they will be working intimately with each other for years or decades, so there is considerable incentive to get along, even after a flare-up. Urofsky said that if a rift does exist, “I don’t see this as a permanent thing.”