On the Supreme Court, Disagreeing Without Being Disagreeable

A week after Justice Amy Coney Barrett chastised Justice Sonia Sotomayor for choosing “to amplify disagreement with stridency” in a Supreme Court decision on former President Donald J. Trump’s eligibility to hold office, the two women appeared together on Tuesday to discuss civics and civility.

They gave, for the most part, a familiar account of a collegial court whose members know how to disagree without being disagreeable.

“We don’t speak in a hot way at our conferences,” Justice Barrett said, referring to the private meetings at which the justices discuss cases. “We don’t raise our voices no matter how hot-button the case is.”

Justice Sotomayor, who usually gives a sunny description of relations between the justices, registered a partial dissent.

“Occasionally someone might come close to something that could be viewed as hurtful,” Justice Sotomayor said. When that happens, she said, a senior colleague will sometimes call the offending justice, suggesting an apology or other way of patching things up.

Similar interactions can happen if a draft opinion is too sharp, she said. “There is dialogue around that, an attempt to find a different expression,” she said.

Justice Sotomayor added, “So all of these things are ways to manage emotion without losing respect for one another and without losing an understanding that each of us is acting in good faith.”

Justice Barrett picked up the point, which may have resonated more strongly in the wake of her concurring opinion in last week’s case. It questioned the tone of a joint opinion from Justices Sotomayor, Elena Kagan and Ketanji Brown Jackson, saying they had needlessly turned up the national temperature.

“I’m glad that Justice Sotomayor brought up that sometimes we do need to apologize because we are human,” Justice Barrett said. “And so sometimes you say something that comes across maybe in a way that you didn’t intend.”

The justices have norms to ensure collegiality, she added. They speak in order of seniority at their conferences, interruptions are not allowed and nobody speaks twice until everyone has spoken once.

The justices often have lunch together, in assigned seats. As it happens, Justice Barrett said, she sits across from Justice Sotomayor. The norms of discussions at conference, she added, mean that “you don’t feel guilty about looking at someone across the lunch table.”

Eric Liu, the chief executive of Citizens University, who interviewed the two justices, said the court’s norms sounded like “the rules of a really good preschool.”

Another analogy, Justice Barrett later said, was that the justices were part of an arranged marriage with no possibility of divorce.

Justice Sotomayor stressed that it is crucial to maintain good relations. “I may not have Amy in this case,” she said of a hypothetical one, “but I certainly will need her tomorrow on something else.”

Justice Barrett said that accommodations are sometimes possible.

“Our job is to say what we think the right answer is to the best of our ability,” she said. “So neither of us can compromise on that and the bottom line, but there’s a lot that we can compromise how we write opinions. You know, you have the ability to write an opinion more broadly or more narrowly.”

She added, “We all work very, very hard, down to like little word choices, oftentimes, down to the smallest word choices, to accommodate one another.”

Justice Sotomayor, 69, was appointed by President Barack Obama in 2009. Justice Barrett, 52, was appointed by President Donald J. Trump in 2020.

The conversation took place at a forum on civics education at George Washington University. Civics education was a pet project of Justice Sandra Day O’Connor, who died last year.

Justice Barrett recalled something Justice O’Connor had said: “If you want to know what’s going on in America, then you can look at our docket and you can see some of the battles that are being waged through litigation are often reflective of the battles that are being waged in the society at large.”

Justice Barrett said the court strikes the right balance between openness and secrecy. “We are simultaneously the most transparent branch,” she said, adding that “you know exactly why we reached the decisions that we did because we make that transparent.”

“But then also we keep a great deal confidential, and I think that gives us the room to be able to deliberate and talk,” she said.

It is true that the court generally issues lengthy decisions in argued cases. But it often disposes of emergency applications on what critics call its shadow docket with no reasoning at all.

Source link

Leave a comment