The Supreme Court has mostly remained professional and out of the mainstream media spotlight, per the usual for the nation’s highest court, but a new report from USA Today claims there is more happening behind the curtain.
According to the report, the conservative majority is frustrating its four liberal members, something which becomes more apparent when looking to the court’s written opinions.
One frustration from its liberal members: Losing.
USA Today reports the liberal judges were often at odds with their conservative colleagues, but Supreme Court Justice Brett Kavanaugh’s predecessor, Justice Anthony Kennedy, would offer a balance of sorts which led to some liberal court majority decision.
Now, Associate Justice Elena Kagan says the balance is lost and its liberal members are far too often on the losing end of cases.
“That enabled the court to look as though it was not owned by one side or another and was indeed impartial and neutral and fair,” Kagan said during Kavanaugh’s confirmation process. Concerning his confirmation to the court, she said: “It’s not so clear whether we’ll have it.”
From USA Today:
What the public sees of the Supreme Court is mostly above-the-belt – literally and figuratively. When the justices rise to leave the bench, Thomas often extends a hand to Ginsburg, who at 86 walks carefully while recovering from lung cancer.
But in their written opinions and dissents, things have gotten a bit snippy.
The court’s four liberals have displayed irritation at its new, more conservative majority – including once in the middle of the night. And some of the five conservatives are showing impatience with the incremental pace of change.
“We are seeing more expression of frustration and anger from the justices this term,” said Erwin Chemerinsky, dean of the University of California-Berkeley School of Law.
Throughout February, March, and April, the Supreme Court heard a number of cases addressing the death penalty and the spiritual well-being of death row inmates. The Court ebbed and flowed in its decisions, frustrating its liberal members.
Per the report:
In April, the court denied another Alabama prisoner’s effort to delay his execution because his request for lethal gas, rather than injection, came too late. So angry was Associate Justice Stephen Breyer, the court’s leading death penalty opponent, that his dissent for the four liberals arrived at 2:30 a.m. He said he had asked to discuss the case the next morning at the justices’ regular conference.
By the time Breyer had vented his frustration, the clock had run out on the state’s authority to carry out the execution. A new execution date was set for May 30, and the prisoner was killed after the justices again divided 5-4.
“Those are things that are sort of peeks behind the curtain,” said Ian Gershengorn, former principal deputy solicitor general at the Justice Department. “To court watchers, that seems significant.”
The push-and-pull between conservatives concerned about delayed justice and liberals seeking to protect prisoners’ rights has been more pronounced than usual. But death penalty cases have been the court’s Achilles heel for years.
A pair of other cases have drove the liberal members on the Supreme Court into a fury, something they expressed in dissent opinions on the decisions:
In April, the court voted 5-4 along ideological lines to block workers from banding together in arbitration disputes.
The four liberal justices were so incensed that each wrote a separate dissent. Their feud with Roberts’ majority opinion featured what Scott Nelson of Public Citizen Litigation Group, which represented workers seeking to sue as a class, called “pointedness in the punctuation.”
“It would never have graced the pages of the U.S. Reports save that this case involves … class proceedings,” Kagan wrote, referring to the compendium of Supreme Court rulings.
Roberts responded by noting that Associate Justice Sonia Sotomayor’s dissent “concludes that the contract is ambiguous about class arbitration but criticizes us for treating the contract as … ambiguous.”
“There’s no question that the dissenters are … expressing themselves very strongly,” Nelson said.
The Supreme Court recently declined to take up a review of Roe v. Wade but may choose to do so amid several legal challenges to it across the country.