The Supreme Court’s Real Problem

The elation following last week’s trio of favorable Supreme Court rulings—on fair housing, Obamacare, and gay marriage—was as welcome as it was unfamiliar. Liberals, at least since Bush v. Gore, have had a string of well-founded gripes with a majority of the justices. But last week, we had reason to celebrate.

That is, unless you detected in the rulings “a new kind of nihilism that has creeped into the Court.” That’s the verdict of The Atlantic’s Megan Garber, who worries about “seething angers” and “sweeping animosities” in the justice’s rulings, whether those in the majority (like Justice Kennedy’s gay marriage ruling) or the dissent (like Justice Scalia’s sputtering objections to the same). This concern seems to manifest (if not exist entirely) at the level of language:

That opinions and dissents are now operating at the heights of moral messaging and the depths of ad-hominem attack is a relatively recent phenomenon—one that has a metaphor, if not a full analogue, in the bitter divides that have become so familiar in other branches of government. […] The Court was meant to be debating the role of the federal government in the twin intimacies of our physical health and our expressions of love. Instead, though, its members talked over each other. They flung insults. They assumed the worst. “The stuff contained in today’s opinion,” Scalia sneered in his reaction to his colleague, “has to diminish this court’s reputation for clear thinking and sober analysis.” You could say the same thing, though, about the stuff contained in that day’s dissent.

In support of this conclusion, Garber adduces a series of quotes that, on the whole, do not quite prove the point. Are we to find shocking that Justice Kagan, in one 2014 opinion, would accuse the majority of “misapprehending” the facts of a case and “misjudging” another aspect? This is nothing too salacious, especially for a dissent. Nor was the language of Kennedy’s gay marriage opinion, which, Garber writes, “claimed, essentially, that to be against same-sex marriage was to be not just on the wrong side of history, but the wrong side of morality.” But this is true of every moral assertion; to make any moral claim is to say that those who disagree are on the wrong side of morality.

If the Court seems snippy lately, it’s largely because of the consistently intemperate dissents of Justice Scalia, who was in fine form in both the Obamacare and same-sex marriage rulings. This isn’t simply a matter of a justice harboring deep disagreements. Consider the deeply-felt liberal dissents in similarly momentous cases: Justice Stevens in Citizens United, Justice Ginsburg in the Lily Ledbetter case, Justice Breyer in Parents Involved, the school desegregation case. All of them managed to write passionate, searing dissents without sinking to Scalia’s level.

To the extent that this is a problem of rhetoric, then, it’s not a problem facing the whole Court. It’s mainly a problem with Scalia. But moreover, the deeper problem is not chiefly the way that Scalia writes; it’s the substance of the decisions made by Scalia and his conservative colleagues. It’s not that Garber’s worries about partisanship are without basis (although it’s certainly not the case, as she complains, that “SCOTUS is acting like Congress.” SCOTUS actually gets things done). There is a distressing partisan problem with the Court, but it’s not partisan division, except insofar as that division results from conservative activism.

To worry about tone is to miss the real problem. This is critical: if we look for the Court’s downfall—or its salvation—in the politeness of its language, we will misunderstand entirely what has gone wrong in the Roberts era. Garber cites John Roberts’s famous promise, during his confirmation hearings, to try and minimize partisan division, and concludes: “This week made it official: That effort has failed.” That’s true, but it’s not because Roberts and his colleagues are writing intemperate opinions. It’s telling that, among the many opinions Garber cites as evidence of the Court’s decline, not a single one is by Roberts. You might conclude, accordingly, that the Chief Justice’s hands are clean—and on these evidentiary standards, you’d be right: he certainly lacks the rhetorical brio of Kennedy or Scalia. But on the Voting Rights Act, school integration, the ACA’s Medicaid expansion, campaign finance, and more, his opinions have done far more real-world damage, and had more far-reaching partisan effect, than an entire term’s worth of intemperate Scalia dissents. To focus on language misses that core point, misreads the Court’s current problem, and suggests—wrongly—that it could simply be solved by a more civil tone.