Running for President in 2008, Barack Obama created quite a stir when, speaking about his opponent’s economic policy proposals, he said “You can put lipstick on a pig, but it’s still a pig. You can wrap an old fish in a piece of paper called change. It’s still gonna stink. We’ve had enough of the same old thing.”
I thought of Obama’s line as I read about Justice Brett Kavanaugh’s July 12 speech to the Eighth Circuit Judicial Conference in suburban Minneapolis, Minnesota. His was the first public appearance by any of the Justices since the Court’s term ended.
According to The Washington Post, Justice Kavanaugh “portrayed the justices as always respectful of one another….. Justices regularly have lunch with one another and don’t discuss cases when they do so, Kavanaugh said. That helps them strengthen their friendships and builds up goodwill.”
The Post quotes Kavanaugh as saying that “In my five years I’ve never had a moment where I thought something was said that was disrespectful or someone was getting — overdoing it on something or being overly critical of someone else’s view. And for that reason I think it’s really quite a model of decision-making, hard work, preparation, respect for others on difficult issues where people disagree.”
But respect and restraint are hardly what comes to mind when one reads the deeply divided rulings and the Justices’ harsh words about each other in the recently decided gay rights and affirmative action cases.
In 303 Creative, Justice Neil Gorsuch used his majority opinion to make clear his incredulity at what Justice Sonia Sotomayor had said in her dissent. “It is difficult to read the dissent and conclude we are looking at the same case,” Gorsuch wrote.
“In some places,” Gorsuch said openly mocking Sotomayor, “the dissent gets so turned around about the facts that it opens fire on its own position.”
Sotomayor, in turn, mocked her colleague’s views. “The unattractive lesson of the majority opinion is this: What’s mine is mine and what’s yours is yours….” She drew an unflattering comparison between Gorsuch and “The brave Justices who once sat on this Court… [and defended] the rights of minorities against discrimination.”
In the affirmative action case, things got even more personal when Justices Clarence Thomas and Ketanji Brown Jackson dropped the formalities of referring to the “majority” or the “dissent” in favor of a direct personal address. Thomas was unusually caustic about the dissenting opinion written by Jackson, the Court’s only other Black member.
“As she sees things,” Thomas wrote, “we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today…. Worse still,” he continued “Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims,”
And Thomas made clear for all to see that “Her desire to do so is unfathomable to me.”
Justice Jackson fired back, again referring to her colleague by name.
“Justice Thomas,” she said “ignites too many more straw men to list, or fully extinguish, here. The takeaway is that those who demand that no one think about race (a classic pink-elephant paradox) refuse to see, much less solve for, the elephant in the room – the race-linked disparities that continue to impede achievement of our great Nation’s full potential.”
These exchanges suggest that what journalist Megan Garber wrote about the Court in 2015 is still true today.
“The Court,” Garber noted “has reached a new nadir of partisan rancor. The Justices didn’t simply disagree on the outcomes of cases; they disagreed on the cases’ moral premises. They disagreed on their own roles in deciding what those premises might be. They descended, as a body, into a kind of judicial chaos, throwing up their hands beneath their heavy robes.”
That behavior, she observed, is “not the stuff of respectful, even rancorously respectful, disagreement. This is instead the stuff of seething angers… and sweeping animosities…. It is the stuff of washed hands and burnt bridges.”
Garber notes that, unlike Kavanaugh’s recent rosy portrait of collegiality and friendship, Justice Sotomayor had previously acknowledged, “If you read some of our decisions, you know that we can be nasty to each other.”
That nastiness is registered in other ways as well. Justice Samuel Alito is notorious for what one commentator calls his “middle school antics” on the Court. Alito barely hides his contempt for his three female colleagues during oral argument, or when they read opinions from the bench as Sotomayor did in 303 Creative at the end of the Court’s term.
On other occasions, as Politico reports, “Alito repeatedly would purse his lips, roll his eyes, and…mouth ‘no.’”
Chief Justice John Roberts used his opinion in last month’s student loan case to warn his colleagues about the tone and tenor of their opinions and put the best face on the Court’s turn toward nastiness. “It has become,” he observed, “a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary…”
Roberts said about his decision in the case that “Reasonable minds may disagree with our analysis.” He urged his readers “not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and the country.”
Disagreement, not disparagement…In his speech last week, Kavanaugh seemed to be trying to reinforce the message of his close ally on the Court. They are trying to portray a well-functioning Court, faithfully following the law.
As Kavanaugh told the assembled judges in Minnesota, “We have lived up, in my estimation, to deciding cases based on law, not based on partisan affiliation or partisanship. We don’t caucus in separate rooms. We don’t meet separately. We’re not sitting on different sides at oral argument, so to speak, on the bench. We work as a group of nine.”
But it is clear that the public is not buying it.
Despite Kavanaugh and Roberts’ reassuring pronouncements, confidence in the Court is at historic lows. And an Economist/YouGov poll found that “most Americans think the U.S. Supreme Court has become politicized, with a majority believing that its decisions are frequently influenced by justices’ personal political viewpoints.”
Another poll reports that “62% of Americans say politics, not law, drives Supreme Court decisions.”
And none of this even touches the ethics scandals that have rocked the Court and about which Kavanaugh said nothing. Two days after Kavanaugh’s speech, federal district judge Michael Ponsor took to the pages of The New York Times to complain that “The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head.”
It is time that Kavanaugh, Roberts, and their colleagues stopped trying to tell Judge Ponsor and millions of Americans not believe their lying eyes. If those Justices want to help the Court that they purport to love and revere, they need to clean up their act. They need to stop serving as minions of their political sponsors and taking favors from fat cats with business before the Court.
Their actions (and inactions) will speak louder than their words.