The Supreme Court is hurting.
I can say that with confidence — not based on any inside information but on the external evidence of how hard some of the justices are working to show that everyone on the court really does get along.
“When we disagree, our pens are sharp, but on a personal level, we never translate that into our relationship with one another,” Justice Sonia Sotomayor told an audience at the National Governors Association conference in February. “We don’t raise our voices, no matter how hot-button the case is,” Justice Amy Coney Barrett said at the civics forum at George Washington University in March.
The retired justice Stephen Breyer, on the talk circuit for his new book on constitutional interpretation, has been making the same point. In a guest essay in The Times this month, he observed that “justices who do not always agree on legal results nonetheless agree to go to hockey games or play golf together.” He added: “The members of the court can and do get along well personally. That matters.”
Does it?
I’m reminded of the last time the court made a concerted effort to assure the public that all was well. It was during the weeks that followed the ruling that clinched the 2000 presidential election for George W. Bush. With the court in recess, justices who had voted on either side of that 5-to-4 decision, Bush v. Gore, scattered around the country and the world (Justice Ruth Bader Ginsburg went to Australia), taking the occasion of previously scheduled lectures to claim that the court was not in crisis.
Justice Ginsburg and Justice Antonin Scalia, bitterly opposed in that case and in a good many others, let it be known that they had kept up their tradition of New Year’s Eve dinner together with their spouses. “The justices are behaving almost like survivors of a natural disaster who need to talk about what happened in order to regain their footing and move on,” I wrote at the time.
Now, by contrast, there is no single issue, no giant iceberg that the court has struck, but rather separate disconcerting developments that have noticeably dented the court’s once secure public standing.
