(Headline USA) With the Supreme Court having weathered a sustained and well-coordinated partisan attack backed by left-wing billionaires who hope to undermine it through politicization, two justices have teamed up to promote the art of disagreeing without being nasty about it.
The unprecedented lawfare campaigns being waged by the Left have foisted upon the court an obligation to wade into political decision-making like never before, even as the court has become inherently more conservative by sheer luck of the draw. That has roiled some bitter partisans, who wish to topple the entire institution in revenge or else force it to be packed with additional left-wing justices to satisfy their sense of fairness.
In joint appearances less than three weeks apart, Justices Amy Coney Barrett and Sonia Sotomayor, ideological opposites, said the need for civil debate has never been greater than it is in these polarized times. And they said the Supreme Court, where voices don’t get raised in anger, can be a model for the rest of the country.
“I don’t think any of us has a ‘my way or the highway’ attitude,” said Barrett, who spoke Tuesday at a conference of civics educators in Washington.
Sotomayor, speaking at a meeting of the nation’s governors in late February, said the justices’ pens can be sharp but also deft in writing opinions. “There are so many, many things that you can do to bring the temperature down and to have you functioning together as a group to getting something done that has a benefit in the law,” she said.
Oddly enough, Barrett used strikingly similar language to criticize Sotomayor and the other two liberal justices less than two weeks ago.
The nine justices unanimously rejected activist efforts to kick presumptive GOP presidential nominee Donald Trump off 2024 ballots using dubious claims that he violated the “insurrection clause” of the 14th Amendment. But the three liberals criticized the court for going too far.
“We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we, therefore, concur only in the judgment,” Justices Ketanji Brown Jackson, Elena Kagan and Sotomayor wrote in a joint opinion.
Barrett basically agreed with them. But she didn’t like the tone.
“In my judgment, this is not the time to amplify disagreement with stridency,” said the court’s only other female justice.
“The Court has settled a politically charged issue in the volatile season of a Presidential election,” she added. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.”
At 52, Barrett is the youngest member of the court. She was appointed by Trump, joining the court a little more than a month after the death of Justice Ruth Bader Ginsburg. While she tends to be a reliable conservative on many issues, she has irked Republicans on occasion with curve balls, such as voting against Texas’s efforts to enforce border security.
Sotomayor, 69, has been on the court since 2009, appointed by Obama, and as almost never strayed from the liberal voting bloc. She famously was flagged prior to her nomination by Harvard law professor and Obama mentor Larry Tribe as being “not nearly as smart as she seems to think.”
She has also been known to get petty in her dissenting opinions on occasion, straying far beyond legal and scholarly discussion into sheerly visceral emotion about what she thinks should be. During arguments in the abortion case, Sotomayor bitterly criticized her conservative colleagues: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible,” she said nearly seven months before the court overturned Roe.
The justices’ appearances hark back to the traveling road show conservative Antonin Scalia and liberal Stephen Breyer put on 15 or so years ago. But Breyer and Scalia cheerfully debated their different approaches to the law. Barrett and Sotomayor acknowledge they see things differently but instead focus on their determination to disagree civilly.
Sotomayor serves on the governing board of iCivics, an education nonprofit started by former Supreme Court Justice Sandra Day O’Connor.
“We do not interrupt one another, and we never raise voices,” Barrett said at the civics conference, describing the justices’ private meetings at which they talk about the cases they’ve just heard.
Justices speaking publicly about the court’s collegiality is nothing new. But something unusual happened after the abortion decision. Some justices engaged in a public back-and-forth over the court’s legitimacy, the very topic Sotomayor raised in the courtroom.
Kagan began the exchange by saying that the court risks losing its legitimacy if it is perceived as political. She returned to the theme last summer at a Portland, Oregon, appearance in which she emphasized “the importance of courts looking like they’re doing law, rather than willy-nilly imposing their own preferences as the composition of the court changes.”
Kagan’s comments followed a term in which the conservatives were united in the affirmative action decision and in scrapping Biden’s unconstitutional student-loan “amnesty” plan and issuing a major ruling that impacts gay rights.
But there were other major cases in which conservative and liberal justices joined to reject aggressive legal arguments from the right, including on Native American rights, immigration and elections.
The court that was partially remade by Trump will undoubtedly remain an issue this election year. Major decisions await on abortion, guns, the power of federal regulators and whether Trump can be prosecuted on charges he interfered with the 2020 election.
Most of those rulings will come down in June, as the justices race to finish their work and feelings sometimes get rubbed raw, even without any shouting.
Whether leftists have the forebearance to accept gracefully their defeat—particularly if another Trump term further shores up the conservative court—remains to be seen.
If they continue to be sore losers, then their efforts to undermine the court’s legitimacy will, in effect, become a self-fulfilling prophesy by creating the very threat to democracy that they were fearmongering about in the first place.
Adapted from reporting by the Associated Press
