Supreme Court summer vacations: Can justices forgive one another?

Can the Supreme Court Justices Forgive One Another for the Nastiness of Last Term?

Can the Supreme Court Justices Forgive One Another for the Nastiness of Last Term?

The law, lawyers, and the court.
Oct. 1 2015 12:47 PM

How the Supreme Court Justices Spent Their Summer Vacation

As the new term begins, can they ever forgive one another?

Supreme Court Justices John Roberts, Elena Kagan, Stephen Breyer, etc.
Back from summer break: Supreme Court Justices John Roberts, Elena Kagan, Stephen Breyer, Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito, Sonia Sotomayor, Antonin Scalia, and Clarence Thomas.

Photo illustration by Juliana Jiménez. Photos by Getty Images.

And so begins the season of the new Supreme Court term. Summaries of the upcoming cases are published. Previews of the term are staged at law schools and think tanks across the land. Justices are summoned back from faraway places to suit up and do some justice. And Americans who remember earlier seasons find themselves asking the perennial question: How do they forgive one another for the nastiness and abuse from the end of the last term? How do they manage to simply reboot, smile, and shake off pointed accusations that they write like pretentious egomaniacs? Shouldn’t they want to put their heads in bags?

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

In my imagination, on the days leading up to the first Monday in October, each of the nine justices stands before his or her bathroom sink, gently flossing, while mouthing Stuart Smalley–style affirmations to the mirror: “I’m OK. I’m good enough. I’m smart enough. I do not write like applesauce.”

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Chief Justice John Roberts has probably had the roughest summer of the nine, having left town in July thinking things were pretty much OK and then finding himself depicted, at the GOP debates, as Exhibit A of a turncoat and a traitor. Berated publicly by conservative advocacy groups and presidential candidates, including Ted Cruz, who claims dear friendship with the man, the past weeks must have been a surprise to the chief. And all this despite his almost untarnished conservative record. Roberts must be wondering who his true friends are and must be baffled by the fact that he left last term a conservative icon and came back a David Souter in Anthony Kennedy’s clothing.

Justice Samuel Alito has been busy this summer, as my colleague Mark Stern points out, positioning himself as the court’s religious liberty warrior, who will continue to press the idea that religious Americans are suffering vicious persecution at the hands of nonbelievers. Alito did confess to a crowd in the U.K. that it helps the justices to have the summer to cool off: “We tend to be kind of angry with each other (by) the end of June.” At a recent speech in Texas, Alito also criticized his colleagues for ignoring the plain meaning of words and for failing to grasp modern technology (because they are old). Fair to assume he resumes the bench with his trademark scrunchy face intact.

Speaking of scrunchies, Justice Ruth Bader Ginsburg seems to have spent her summer watching her rock star status move from stratospheric to galactic.* Depicted on Saturday Night Live, the subject of an opera, a celebrity DJ, and star of a soon-to-be biopic, Ginsburg has been doing a gay-marriage victory lap and reveling in liberal praise for holding the left wing of the court together last term. Ginsburg doubtless has the major abortion cases on her mind as she heads into the 2015 term, and she has already lobbed a not-too-subtle warning at Anthony Kennedy suggesting that he shouldn’t pull any more of that Father Knows Best stuff he used the last time the court heard an abortion case.

Ginsburg’s brother from another mother, Justice Antonin Scalia, has spent a good part of his own summer relitigating his angriest disagreements of the spring. It’s pretty clear that even if most of his colleagues have used the summer for a gentle ayurvedic cleansing of the spleen, he’s about as angry as he was when the court adjourned. Just last week he spent Constitution Day arguing that marriage equality “has nothing to do with the law.” He is also still bothered by the announcement on the final day of the term that Justices Stephen Breyer and Ginsburg believe the death penalty is possibly unconstitutional. He was warning the same group of students that he  “wouldn’t be surprised” if the Supreme Court ruled the death penalty unconstitutional. He is bracing for defeats, even as the right wing of the court appears poised for a slew of victories.

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But if Scalia is looking downward and backward, Breyer has spent the final weeks of the summer—as ever—facing outward and up. Breyer invariably manages to be the cheeriest of the justices, and his new book, The Court and the World, is an effort to broker a dialogue with American citizens and their international brethren, with an understanding that the world is growing ever smaller and the law can help bring us closer together. Breyer has experienced his own media frenzy this month, with a star turn on Stephen Colbert’s show. But if he is still smarting from Scalia’s accusation on the final day of the term that he rejects, well, “the Enlightenment” it doesn’t show. Breyer loves the Enlightenment. Nothing personal. Indeed, as Breyer assured Colbert, when it comes to conference, no matter what’s been said and written, “the discussion is professional, it is serious, it is not personal, and we are good friends.” Welcome back, Justice Grover! If he’s humming anything to himself in the bathroom mirror this week, it’s “We Are the World.”

Justice Elena Kagan has become something of a master at keeping a low profile on a court teeming with big personalities. We know that she spent her summer on the usual round of traveling and public appearances, giving writing tips to young lawyers, telling law schools to build better writers, and confessing to crushing Justice Breyer in violent video games a few years back.

This brings us to Justice Clarence Thomas, always one of the quietest members of the court, who takes seriously the task of unplugging and decompressing in the summer—often in his converted bus. As much as Chief Justice Roberts got shellacked this summer for being the wrong kind of conservative, Thomas got the love, with important conservative thinkers arguing that Thomas, not Roberts, is precisely the model for what the next justice should be. As Richard Hasen notes, in reviewing potential court appointments, Thomas has become the poster boy for what the next GOP president should seek: “In a recent article in the Weekly Standard, Professors Randy Barnett and Josh Blackman urge the next Republican President to appoint Justices, like Thomas, who care little about judicial restraint or respect for precedent.” Thomas doesn’t believe in precedent. And he is willing to go much further than even some of his conservative colleagues to fundamentally change constitutional doctrine.

Justice Sonia Sotomayor may be the only member of the current court who enjoys herself more off the bench than on it, and this summer has been no exception: She has given speeches and made appearances and generally delighted in the company of noncolleagues. She suggested in a rather aggressive way that students who don’t vote have failed, and she offered some thoughts on the merits of being passionate about marijuana legalization and keeping Ruth Bader Ginsburg awake during the pope’s address to Congress. Sotomayor will be watching closely as the court takes another run at affirmative action this term. (We now know she had a possibly significant impact on the court’s decision to punt on the issue a few years back.)  

And this of course brings us to Justice Anthony Kennedy, who could plausibly have left the bench this summer with bruised feelings, having seen his tour de force opinion in Obergefell dismissed by Scalia as the “mystical aphorisms of the fortune cookie.” And the summer revealed that however much the conservative political establishment may hate on John Roberts, it will always, always hate Kennedy far more. Yet Kennedy also left the court knowing that—as more than one headline trumpeted in end-of-term summaries—it’s Kennedy’s world now and will be for the foreseeable future. He always spends his summers jetting around, visiting and chatting and sipping, and he’s most certainly going to be the decider again in virtually every big-ticket case the court will be hearing this year.  

So what does Kennedy tell himself when he looks at his face in his shaving mirror this week, wondering if his feelings are hurt because Justice Scalia thinks he writes like a Hallmark card? Given that the fate of abortion rights, affirmative action, juvenile justice, union fees, and almost everything else that matters looks likely to rest in Kennedy’s hands, I’m guessing he’s feeling—to borrow from Stuart Smalley—like he’s good enough, and smart enough, and raring to go.

*Correction, Oct. 2, 2015: This article originally misstated that Justice Ruth Bader Ginsburg's rock star status moved from galactic to stratospheric. Because the galaxy is larger than the stratosphere, those words should have been reversed.