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

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 e-mails 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, and 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 principles. But we’re fundamentally outsiders, offering our best guess as to what’s happening inside a black box based solely on what that box spurts out. And, at least in my case, I don’t mind telling you that my analysis is colored by my strong bias toward human decency, democracy, and the protection of minority rights.

The justices themselves are, or can be, the best source for what’s really going on at the court. If they point out problems, that should carry more weight than the total tonnage of talking heads.

But speaking out does not come naturally for the justices on the court. Traditionally, the Supreme Court speaks only through its opinions. If there is a disagreement that they think the public should be aware of, that’s what the dissent is for. The justices are conditioned to let their writing do the talking, both out of a sense of professionalism and because they want to avoid seeming “political.”

That reticence extends all the way down to the Supreme Court clerks who work for the justices, and the reporters who cover the institution. While Congress leaks like a sieve, and there’s a new tell-all book about the president every month, the Supreme Court almost never leaks. Think about it this way: The Kantor/Liptak story is based, in part, on memos sent 10 years ago. Reporting on the Supreme Court is like doing astronomy; you’re reporting on events you can only see years and years after it happened.

The Supreme Court’s functional vow of omertà makes the institution the most secretive, most opaque branch of government. Given how much power these people have, the lack of information should be unacceptable to the general public. These people purport to tell us what rights we have. They tell us who can vote, and what we can vote for. They tell us that children should be sacrificed on the altar of the Second Amendment—and LGBTQ+ children should simply be sacrificed. And yet they are less communicative, and are under less scrutiny from the press, than a town supervisor with a Facebook account.