The justices of the U.S. Supreme Court have never been the “team of nine” described, over and over, by Brett Kavanaugh last month at the start of his confirmation proceedings. But they have been a team of naysayers to charges that the court is a partisan institution, an argument made more difficult by Kavanaugh himself.
Kavanaugh last week angrily denounced sexual misconduct allegations against him as being part of a “calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election” and “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” He added: “As we all know in the United States political system, what goes around comes around.”
His conspiratorial tirade drew rebukes from the left and the right, and last night, Kavanaugh tried to restore his image as a nonpartisan judge. Writing in a Wall Street Journal op-ed, he acknowledged he said some things that he wished he had not. Retired Justice John Paul Stevens, speaking in Florida on Thursday, said Kavanaugh’s performance last week marked him unfit for the Supreme Court.
Many of the justices in recent years have raised concerns about how the bitter confirmation fights between Senate Republicans and Democrats over the Supreme Court damage the public perception of the court as nonpartisan. Kavanaugh’s language and demeanor didn’t help the “team of nine” dispel that notion.
And the sitting justices themselves sometimes say and do things that go against their effort to wipe away the perception of the court as partisan.
Justice Ruth Bader Ginsburg apologized in 2015 for her comments in an interview in which she called then-candidate Trump a “faker” who “says whatever comes into his head at the moment.”
Justice Neil Gorsuch was criticized for a speaking engagement at the Trump Hotel in Washington, and for going on a congratulatory post-confirmation tour in Kentucky with Senate Republican Leader Mitch McConnell.
But by and large, most of the justices have taken strides to promote an image of themselves as neutral arbiters of the law. Here are comments by the justices on how they view themselves and their court.
>> “When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms. If the Democrats and Republicans have been fighting so furiously about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process. And that’s just not how—we don’t work as Democrats or Republicans.” —Chief Justice John Roberts Jr., 2016 Law Day speech.
>> “There’s no such thing as a Republican judge or a Democratic judge. We just have judges in this country.” —Justice Neil Gorsuch, 2017 Senate confirmation hearings.
>> “That’s an unfortunate thing because it makes the world think we are sort of junior varsity politicians. I think that’s not the way we think of ourselves, even given the fact that we disagree and that we disagree sometimes in ways that you can predict based on what kind of a president appointed us. I think we’re disagreeing over methodology and principle. We’re not disagreeing because one person is a Democrat and one person is a Republican.” —Justice Elena Kagan, 2018 conversation with University of Chicago law students.
>> “So the two questions I [always] tend to get when I am at a college audience or a law school audience, and I say, ‘I know what you think, you first think that we just sit there and just pick out the cases we want to decide because it would be so interesting.’ And I explain how it works. And you think what we really are, are junior-league politicians. That’s what you think. You may be too polite to say it, but that’s what you think. And if I tell you that we are unanimous 50 percent of the time, you say, ‘Oh but those are the technical matters, nobody cares.’ I am not going to go into it in-depth, but it isn’t what it’s like. I think if I had the time, I could persuade you that we are not junior-league politicians, for better or for worse.” —Justice Stephen Breyer, 2014 National Constitution Center.
>> “I am sad that people have lost confidence in the judiciary. What has happened is not that the court has become politicized but that society has. We’re not looking for outcomes. We’re looking for an approach to our task that will give us a sense of not being arbitrary and capricious. We are trying our best to do our job in a way that we think is fair and impartial.” —Justice Sonia Sotomayor, 2017 University of California Berkeley School of Law.
>> “Our system presumes that there are certain principles that are more important than the temper of the times. And you must have a judge who is detached, who is independent, who is fair, who is committed only to those principles, and not public pressures of other sort. That’s the meaning of neutrality.” —Justice Anthony Kennedy, Frontline 2010
>> “It really enrages me to hear people refer to it as a politicized court.” His colleagues vote however they do “because that’s who they are. They were selected because of who they are. Maybe the legislature and the president are not as stupid as you think. They assuredly picked those people because of who they are and when they get to the court they remain who they were.” —The late Justice Antonin Scalia, 2012 panel discussion on “Reading Law: The Interpretation of Legal Texts.”
>> “What I care most about, I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.” —Justice Ruth Bader Ginsburg, 2011 interview.