Conservatives had a tough go ’round at the Supreme Court this term. Obamacare, gay marriage, and questionable disparate impact analyses were all propped up by a divided court, causing prominent pundits to question the state of the Court, the wisdom of lifetime appointments, and the intentions of Republican-appointed Anthony Kennedy.
The Court, for all its successes and failings, serves as both beacon and barometer for the general population. While lawyers pour over briefs and opinions, and argue about pendulums, most people swallow up on-site media reports and adjust their attitudes according to which justice said what. Mainstream SCOTUS watching, then, has become less of an intellectual exercise, and more of an exercise in pop culture fandom—which has had more of an effect on the Court than you would think.
During a recent interview with NPR, liberal justice Ruth Bader Ginsburg offered some insight into the Court’s left wing, and described how her colleagues maximize the impact of their opinions—even when they find themselves in the minority, as they did in the landmark Bush v. Gore.
The time pressure in the [Bush v. Gore] case was excruciating, with the court issuing an opinion just a day after oral arguments, and, as Ginsburg put it, the four liberal members of the court “were unable to get together and write one opinion.” Indeed, each wrote a separate dissent, resulting in such confusion that, as she pointed out, some early press accounts erroneously reported that the decision was 7-2, not as it in fact was, 5-4.
After that experience, “we agreed,” said Ginsburg, that “when we are in that situation again, let’s be in one opinion.” It’s important, she added, because the public and the lower courts need to know what the court has done or not done. And neither lawyers nor judges will stick with opinions that go on and on.
“If you want to make sure you’re read, you do it together, and you do it short,” she said. Otherwise people will neither read you nor understand what you are saying.
Everything she’s saying here is true. From a messaging standpoint, a united front comes across much stronger (and louder) than does a united front also carrying various alternate explanations for why the agreed-upon result is correct.
Conservatives may not like the results coming down from the bench, but you have to admit—their tactics worked.
Ginsburg seemed to acknowledge that the unity policy that the more liberal members of the court have tried to follow since Bush v. Gore worked this term with stunning success, especially as contrasted with work of the court’s more conservative justices. The four most conservative members of the court wrote a total of 78 dissenting and concurring opinions, as contrasted with the four liberals, who wrote a total of 27.
So why does Ginsburg think that her conservative colleagues were so verbose, or as she put it, “Why each of the [conservative] prime dogs found it necessary to do his own thing?”
Ginsburg just smiled enigmatically, saying, “Next term I think you’ll see some of my colleagues will be more disciplined.”
I’m not going to sit here and question the insider musings of a Supreme Court justice, but what I will say is that I don’t believe the conservative justices—especially Scalia and Thomas, who definitely took their own tack this session—were undisciplined so much as they were asserting particular methods of interpretation that opinions written by Kennedy, et al. left in the dust.
In the opinion, Ginsburg mentioned in particular the barrage that Kennedy endured following the release of the Obergefell opinion, saying that he largely let the opinion speak for itself. This was an easy choice for Kennedy to make, because gay marriage (at least in terms of mainstream coverage) won both at the Supreme Court, and in the Court of public opinion. He wasn’t forced to defend his opinion (because the loudest Americans liked it) or how he came to its conclusions (because people, by and large, do not care what the law really says.)
Forming a united front may have been easier for Scalia and the other members of the Court’s conservative wing, but it would have meant abdicating the role those justices were actually selected to play. The liberals’ tactic of presenting an easily digestible message—as opposed to a correct, nuanced one—may work in terms of public relations, but it may be the One Thing that truly signals the end of the Court as we know it.
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