A few weeks ago, I asked Adam Liptak – Supreme Court reporter for The Times – To see major cases which would constitute the end of the court term. Adam was prophetic, and he correctly predicted every great judgment. Today, he’s back on the newsletter, answering my questions about the backstage atmosphere in court.
David: The past few months have been among the most unusual in recent court history – big leak followed by a decision to abort, as I wroteIt will change American life in major ways. On the field, do you think things are different, too?
Adam: The Supreme Court building has been closed to the public since the start of the pandemic. Then, shortly after the draft opinion that struck down Roe v. Wade was leaked in early May, the court was surrounded by an eight-foot fence. The court has always been aloof and remote, now impenetrable.
The decision in the abortion case highlighted another way in which the court withdrew from public scrutiny. For unexplained reasons, judges have stopped announcing their decisions from the court, abandoning a ceremonial and enlightening tradition. In the old days, a majority opinion writer would provide a quick summary and conversational judgment that could be of great value to the reporter on the deadline, and thus to members of the public trying to understand the decision.
Even more important was the oral opposition, dedicated to decisions that minority judges believed were badly wrong. In normal times, one or more of the three liberal justices who defected in the abortion case would have raised their voices in protest. These days, the court content itself with publishing its decisions in PDFs, robbing the occasion of celebration, drama, and insight.
So attorneys who have discussed cases and reporters who cover court work learn about decisions the same way everyone else does — by updating their browsers. But the judges are back in the courtroom to plead, right?
Yes, they took a different approach to the arguments. After hearing on the phone most cases of the pandemic, the judges returned to the stand in October. Journalists with press credentials of the Supreme Court were allowed to attend and the public could listen to the live audio broadcast on the court’s website. It is not clear why opinions cannot be stated in a similar way.
I haven’t been to court since the last argument in the current chapter, on April 27, when Chief Justice John Roberts felt an affectionate farewell to his retired colleague, Justice Stephen Breyer. But there is every reason to believe that the leak, the investigation that prompted it, and the controversy over Judge Clarence Thomas’ failure to disavow a case that intersects with his wife’s efforts to overturn the election and the justices’ genuine security concerns have made the Court of an unhappy place.
In his remarks in May, shortly after the leak, Justice Thomas pondered how things had changed in the court 11 years ago without changes to its membership prior to the arrival of Chief Justice Roberts in 2005. “This is not a court of that era,” Judge Thomas said, adding : “We trusted each other. We may have been a dysfunctional family, but we were a family.”
It appears that a less collegial court may be particularly problematic for the three liberal justices. There are now five Republican-appointed justices who are more conservative than Roberts. If the Court is a less cooperative place, I imagine it gives justices in the minority – the Liberals and in some cases Roberts – less power to shape decisions.
Yes, although the power of the fellowship can be overstated. Judges cast votes based on the strength of the relevant arguments and desired outcomes, not on how impressed their colleagues are.
The judges say there is no deliberation of votes across cases, and I believe them. On the other hand, there are certainly negotiations within the issues. It seems plausibly clear, for example, that Justice Breyer and Elena Kagan switched positions in one part of a 2012 case that upheld a key part of the Affordable Care Act to ensure it would secure Chief Justice Roberts’ vote on another.
The justices may be well prepared to narrow or reconstitute a draft opinion that seeks to speak to a five-judge majority in exchange for a vote. But once the author hits five, the value of another potential vote drops. It is this dynamic that should worry court liberals.
On Thursday, Judge Breyer formally retired and was sworn in, Justice Kitangi Brown-Jackson. How do judges usually welcome a new member?
When a new judge joins the Supreme Court, tradition requires the second-largest judge to arrange a small party. In 2006, for example, when Judge Samuel Alito joined the ship, that task fell to Judge Breyer, who knew his new colleague was a Phillies fan. Before serving dessert, Judge Breyer introduced a special guest: Phillie Phanatic, the team’s mascot.
This year, Judge Amy Connie Barrett is the second-largest junior justice, and presumably she will be responsible for Justice Jackson’s welcome celebration.
Now that the court is off until October, what do judges usually do?
They often teach courses in exotic places. In 2012, for example, after voting to support the Affordable Care Act, Chief Justice Roberts left for Malta to teach a two-week class on the history of the Supreme Court. “Malta, as you know,” he said, “is an impregnable island fortress.” “It seems like a good idea.”
More on Adam Liptak: He began his career in The Times as a copy boy in 1984, bringing coffee to editors and occasionally writing. After law school and a stint at a Wall Street law firm, he returned to the newspaper in 1992, joining the company’s legal department before moving to the newsroom as a reporter a decade later. He reads a lot and plays poker a lot.
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