The Supreme Court justices are getting testy with one another. As the court’s conservative revolution proceeds, the tone of the court’s opinions is getting increasingly confrontational — and increasingly personal. Extreme decisions are provoking extreme reactions. The leak of the Dobbs opinion last year, and the court’s botched investigation into it, can’t be helping the atmosphere.
The tension on this court seems to stem from different causes than the acrimony that prevailed in the court of the 1940s and 1950s, described memorably as “nine scorpions in a bottle.” Then, the justices fell out with each other yet managed to use their differences to create lasting, important schools of constitutional thought. Personal tensions among big personalities fueled intellectual distinction. Now, judicial disagreement is only fraying tempers and undermining collegiality and courtesy.
A major shift in tone can be seen in the liberals’ criticisms of major conservative decisions. It’s one thing to say in dissent that the other side is dead wrong. It’s another, more unusual one to attack the decisions’ very legitimacy as law.
Here’s Justice Elena Kagan, dissenting in the student loan forgiveness case, Biden v. Nebraska: “In every respect, the Court’s decision today exceeds its proper, limited role in our Nation’s governance.”
Arguing that the court lacked standing, Kagan didn’t just say the majority was incorrect. The court, she said, “violates the Constitution.”
Chief Justice John Roberts noticed. And he expressed his disappointment and disapproval: “It has become a disturbing feature of some recent opinions,” he noted, “to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.”
The tone change isn’t only from the left. Justice Clarence Thomas shattered the norms of judicial collegiality in his concurrence in the Students for Fair Admissions v. Harvard affirmative-action case, attacking Justice Ketanji Brown Jackson, the court’s first Black female justice, in starkly personal terms. In a six-page tirade, he repeatedly ascribed views to Jackson that she did not come close to expressing.
None of this is normal.
Of course, as the scorpions-era justices demonstrated, there’s nothing inherently wrong with mutual judicial disdain. Channeled properly, it might even push some to come up with better theories. For observers, sharply worded opinions make reading cases more fun. The late Justice Antonin Scalia’s opinions, especially his dissents, will live on in casebooks partly because of their acid wit.
At the same time, in an era of political polarization and declining norms of mutual respect in civic discourse, there is good reason to think hard about the tone of Supreme Court opinions. That tone will influence how the public sees the court and its members.
Will we be better off in a world where there is more contempt for the judiciary? I seriously doubt it.
Noah Feldman is a columnist for Bloomberg Opinion.
