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Why the Supreme Court Justices Are Suddenly Casting Shade on Each Other

The breach of decorum says a lot about the crisis of the court—and that’s a good thing.

The statue “Contemplation of Justice,” above the west front plaza of the U.S. Supreme Court.

The Supreme Court justices have been running their mouths. Justices Clarence Thomas, Sonia Sotomayor, and Ketanji Brown Jackson have all spoken recently about the state of the court—while casting some not-so-collegial shade on their colleagues. At an event in early April, Sotomayor made a pointed comment about a colleague (clearly meant to be alleged attempted rapist Brett Kavanaugh) who she said did not have the “life experience” necessary to appreciate how his love for racial profiling hurt others—an objectively true statement that she later apologized for, for no reason. Thomas accused “progressives” of trying to undermine the Declaration of Independence, which isn’t true except for the part where the Declaration only contemplates freedom for wealthy white men. Justice Jackson was perhaps the most critical, excoriating the court for its use of the shadow docket.

Soon after those comments, Jodi Kantor and Adam Liptak published an article in The New York Times that relied on a trove of leaked memos and emails from the justices about  the proverbial birth of the shadow docket. This followed an article, also in the Times, alleging a “cat fight” between Jackson and Justice Elena Kagan, which is exactly the kind of thing that would never get published if two men were having a normal professional disagreement over brandy or whatever. And just this week, Republican reputation-washer Mollie Hemingway came out with a new book about Justice Samuel Alito—and apparently everybody has been blabbing to her for reasons surpassing understanding. 

There’s always a lot of gossip surrounding the court. But the public comments from the justices, as well as the leaks, feel different. What’s emerged from their speeches and spills is that the justices are deeply divided on the state of the court and the country. 

The press has responded with some pearl-clutching. Supreme Court justices do not usually air criticisms of each other, so there’s a feeling like another important norm is being breached. But I think these public comments are a good thing. The Supreme Court is a political institution, the justices are political creatures. All the sniping is doing is revealing the politics behind the court, and I think the public is better off knowing how these nine people really think.

Especially right now. The conservative theocrats on the Supreme Court are drunk with their own power—to the point where they often don’t feel the need to explain themselves and instead issue pronouncements via the shadow docket, without the benefit of a full hearing. They have become the enforcement arm of the white-wing’s political and cultural agenda. Pretending that the court is still remotely interested in “doing law” as opposed to “doing politics” isn’t doing anybody any favors. 

The alarm bells should be raised, and the loudest alarms should be coming from the liberals on the court. Partisans like me can scream all we want about the Roberts court’s utter disregard for precedent and established legal........

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