“Equal justice under law,” by its own admission, is the core constitutional purpose of the U.S. Supreme Court. In fulfilling this purpose, the nine justice tribunal must ensure “the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.”
The justices of the historically secretive Court have generally paid deference to each other, mindful to keep their personal, and even political, differences concealed in its inner chambers.
That is not the case anymore. In recent times, the justices have become rude, mean-spirited, and outright contemptuous toward each other.
Escalating Tension Among Justices
A January 18, 2022 NPR interview with Nina Totenberg, one of the nation’s leading Supreme Court analyst, revealed shocking and escalating rifts among the Court’s justices.
For example, Justice Sonia Sotomayor has a diabetic condition that places her in a nigh-risk category for COVID exposure and complications. While all the justices have been vaccinated and boosted, they nonetheless wear masks during all official public and private court proceedings—except Justice Neil Gorsuch.
Justice Sotomayor, therefore, does not attend public arguments before the Court because her assigned seat is next to Justice Gorsuch, nor does she participate in person during any private legal conferences among the justices. Instead, she has elected to handle her responsibilities in both settings through telephone.
The Court’s quasi-official mask policy, according to Totenberg, came after Chief Justice John Roberts suggested, in some unspecified manner, that all the justices wear masks to protect Sotomayor’s health. Every Justice, except Gorsuch, responded favorably to the Chief Justice’s mask suggestion. Gorsuch refuses to wear a mask under any conditions or circumstances, not even if it means potentially exposing a fellow justice to the deadly virus.
SCOTUS is Unusually Antagonistic
In her NPR All Things Considered interview, Totenberg was asked by program host Ailsa Chang if Gorsuch’s ill-considered mask behavior was unusual.
“It’s unusual,” Totenberg responded. “You don’t have to be a keen observer these days to see that something out of the ordinary is happening. Now, maybe some of it is COVID making people a little crazy. But more likely, it’s the fact that there is a very aggressive, conservative supermajority, including three Trump appointees, and a court that could well end up being more conservative than any court since the 1930s. So it’s not surprising that the Court’s three liberal justices would be upset, but the degree of that upset telegraphs something even more.
“At oral argument, Justice Elena Kagan, for instance, one of the Court’s best questioners, sometimes just shuts down rather than alienate her colleagues. Still, her anger is often palpable, the color literally draining from her face. And Justice Stephen Breyer on occasion just holds his head in both hands.
“Justice Sotomayor takes her shots quite regularly. In November, when the Court at oral argument seemed prepared to overturn Roe v. Wade, she first noted that, for 50 years, 15 justices voted to reaffirm Roe, and just four had dissented. And then she asked this pointed question – will this institution survive the stench of reversing Roe and the perception that the Court’s decisions are now just political acts?”
Erosion of Court Precedent
It has become increasingly evident that the Supreme Court is no longer committed to its “equal justice under law” core principle but instead is now committed to the justices’ political ideologies, regardless of the Court’s prior precedents.
This was made clear on November 1, 2021, when the U.S. Supreme Court heard oral arguments in the case of Dobbs v. Jackson Women’s Health Organization. The primary issue before the Court, in that case, is whether a 2018 Mississippi law banning abortions after 15 weeks is unconstitutional to the extent that it would effectively overturn the 1972 decision in Roe v. Wade which extended a constitutional right to women to have an abortion.
The oral arguments by Mississippi’s Solicitor General, Scott G. Stewart, seeking to overturn Roe were sophomorically disjointed and at times borderline incoherent. He could never quite get a thought orchestrated in a single sentence but rather meandered around with a host of other unrelated ideas when answering questions from the justices.
Stewart was a former law clerk to Supreme Court Justice Clarence Thomas, who he refers to as one of his “kids,” which may explain why the “conservative” justices repeatedly served state’s attorney with questions that expressed a position consistent with their arguments.
The Court, especially Chief Justice John Roberts, has tried to convince the public that the Court is non-partisan. However, the political partisanship of the Court was made evident by the six conservative justices throughout the two hours of oral arguments, five of whom could barely conceal their desire to confront and be rid of Roe.
Supreme Court Grows More Openly Partisan
It is a tragic erosion of America’s democratic ideals that the U.S. Supreme Court has become such a blatantly partisan political institution far removed from the third independent branch of government it declared itself to be in Marbury v. Madison in 1803.
The fact that the Court’s justices allow themselves to be identified as “conservative” or “liberal” illustrates just how politically partisan the Court has become.
For example, Justice Thomas’ frequently makes it part of his “conservative” strategy to serve as “keynote speaker” before hard-right political conservative associations like the Federalist Society or conservative Catholic groups. His wife, Ginni, is also a far-right Trump supporter who uses political action groups to support radicalized Trumpism.
Similarly, Justices Samuel Alito, Amy Coney Barrett, Brett Kavanaugh, and Neil Gorsuch all have ties to far-right political and religious groups.
In the wake of the Dobbs oral arguments, it is now widely believed that these four justices, along with Justice Thomas, will vote to overturn Roe v. Wade. Under the leadership of Chief Justice Roberts, these justices have voted consistently in recent years to expand the reach of “religious freedom” in everyday American life, which, incidentally, is freedom for “their” religious beliefs.
Justices’ Religious Views Create “Political” Court
Religious supremacy has long been the goal of the conservative political movement—a movement supported and encouraged by right-wing religious ideologues like Trump ally and QAnon supporter former General Michael Flynn, who say America needs “one religion under God.”
Justice Sonia Sotomayor bluntly told Solicitor General Stewart that his arguments were expressing a “religious view”—what Flynn called the “one God” rule—and that any decision handed down in Dobbs would be widely perceived as a “political” rather than a “constitutional” decision.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sotomayor asked Stewart.
“I don’t see how it is possible,” she added.
Try as he might, Chief Justice Roberts will not be able to save the Court from the “stench” of Justices Thomas, Alito, Barrett, Gorsuch, and Kavanaugh not only in Dobbs but a host of other coming decisions.
The Court, we fear, is headed for another Dred Scott era, in which the conservative activist Justices seem prepared to discard Constitutional principles, precedent, and evolving social norms to political ideology.