For Supreme Court justices, summertime used to be quiet time, out of the public eye. They would escape to summer homes in New England, the coffee houses of Salzburg or the horse races of Siena — or whichever alluring locale happened to host a summer law school program that invited them to teach. After a torrent of words from October to June, they would say very little of note.
Not this summer. The justices kept talking, and talking, to the delight of the news media and Supreme Court aficionados.
Their verbosity may have been triggered in part by the contentious term that ended with the announcement of the landmark decision in the Affordable Care Act cases. The ruling was followed closely by reports of intense infighting among the justices, with conservatives reportedly furious at Chief Justice John Roberts Jr. for switching sides to uphold most of the law.
So the justices may have taken to the stump and the airwaves to show that they were not bruised from battle and to repeat their mantra that theirs is a collegial court. “We had in many respects a hard year last year,” Justice Elena Kagan told a Richmond, Va. audience recently. But, she also said, “We agree more than people know and more than we’re given credit for.”
Speaking more directly, Justice Antonin Scalia flatly denied a feud with Roberts. “No, I haven’t had a falling out with Justice Roberts,” he told CNN’s Piers Morgan in July. “Nothing like that.” Asked if any of the justices were influenced by politics in their voting, he said firmly, “Not a single one of them.”
Scalia was the most visible justice this summer, driven by his desire to generate interest in the book he co-authored with legal writing guru Bryan Garner: Reading Law: The Interpretation of Legal Texts. The two were on numerous talk shows, and after an obligatory discussion of the book, their hosts would often focus only on Scalia, asking him all kinds of questions. CNN’s Morgan pried out of Scalia the newsy tidbit that his favorite Italian pasta dish was pasta con sarde, a grim pastiche of sardines and fennel fronds.
Scalia’s book also triggered a public feud that captivated the legal world during the court’s recess. If Roberts was not the object of Scalia’s animosity this summer, then 7th Circuit Judge Richard Posner certainly was; maybe Posner was doing his best to restore harmony on the high court by redirecting Scalia’s anger toward himself.
Posner wrote a critical review in The New Republic of the Scalia-Garner opus. Among other things, Posner accused Scalia of resorting to legislative history in spite of Scalia’s avowed abhorrence of doing so. “To say that I use legislative history … is simply, to put it bluntly, a lie,” Scalia retorted at a Thompson Reuters discussion Sept. 17. “And you can get away with it in The New Republic I suppose, but … not to a legal audience.”
The tiff between the two legendary conservatives was extraordinary both in its public nature and its duration. It has gone on for 13 rounds, by blogger Josh Blackman’s count. “They definitely need to take this outside,” said Blackman, an associate professor at South Texas College of Law. Garner, Scalia’s co-author, summarized the feud succinctly on Twitter: “First Judge Posner called me a liar, and then Justice Scalia called Judge Posner a liar, and now I’m completely out of Twitter characters.”
News of the Posner-Scalia fracas may even have reached Justice Clarence Thomas, who notoriously does not read newspapers. Thomas, who was also more visible this summer than usual, seemed dismissive of the doctrines that are so important to Scalia and underlie Scalia’s disagreement with Posner.
In declaring his fealty to the Constitution, Thomas said earlier this month, “I know that’s not what you say in Washington, D.C., anymore. You’re supposed to say there’s some angle, there’s some methodology you’re pushing. There’s originalism, there’s textualism. There are all these useless peripheral debates other than just doing our jobs the best we can and trying to live up to our respective oaths to make it all work.” Thomas was speaking at the National Archives in a conversation with Yale Law School professor Akhil Amar, the latest milestone in Thomas’s rapprochement with his alma mater.
The justices may also have stepped into the spotlight this summer to show they were working, not just playing. American University Washington College of Law professor Amanda Frost wrote a biting commentary on Slate in August questioning whether justices deserved three months off.
Justice Anthony Kennedy made a defense of sorts of summer travel when he spoke to the Ninth Circuit judicial conference in Maui in August. Republicans in Congress had criticized the circuit for squandering taxpayers’ dollars by holding the conference in Hawaii instead of on the mainland.
In an ode to tropical islands that only Kennedy could have uttered, he told the audience, “There is a loveliness, even a loneliness in the Pacific that makes it fitting for us to search in quiet for the elegance and the beauty of the law.”
Somewhat less lyrically, Kennedy added, “If the American public knows, and they should know, of what we do at this conference, they would be and should be immensely proud, not only the judiciary and the members of the academy and of the bar who are here, but of the idea of law in itself.” The justice also saw fit to tell listeners that he had just read The Lincoln Lawyer, a legal thriller by Michael Connelly. “I didn’t see the movie but it’s a good read for escape.”
The justices’ summer in the spotlight can also be traced to John Roberts Jr.’s tenure as chief justice. When he arrived on the court in 2005, he made frequent public appearances, in effect telegraphing to other justices by example that stepping out was okay. Associate justices take their cue on such matters from the chief, so they have been out and about far more than in the Rehnquist era.
Ironically, it is Roberts who now seems somewhat more withdrawn from public view. Perhaps soured by early press inquiries into his health, and with his plate full as chief justice, Roberts has been less visible off the bench than some of his colleagues. After teaching for two weeks in Malta in July, Roberts repaired to his summer home on Hupper Island off the coast of Maine with his family. Few public sightings were reported.
Tony Mauro can be contacted at firstname.lastname@example.org.