Conservative Gains on Supreme Court Leads to Anger and Quarrels Among Justices ‘Behind the Curtain’

(From L) Chief Justice of the US Supreme Court John Roberts and Associate Justices Clarence Thomas and Ruth Bader Ginsburg attend the swearing-in ceremony of Brett Kavanaugh as Associate Justice of the US Supreme Court at the White House in Washington, DC October 8, 2018. (Photo by Brendan Smialowski / AFP)BRENDAN SMIALOWSKI/AFP/Getty Images ORIG FILE ID: AFP_19V7N8

The Supreme Court decided an Indiana abortion case last month with an unsigned, three-page compromise opinion that had something for both conservative and liberal justices to like.

They quarreled anyway. It’s been that way a lot this term.

“Justice (Ruth Bader) Ginsburg’s dissent … makes little sense,” Associate Justice Clarence Thomas wrote in a footnote to a 20-page concurrence. He said the state’s regulation of fetal remains disposal, which the court upheld, does not burden the “mother’s right to abort that (already aborted) child.”

“Justice Thomas’s footnote displays more heat than light,” Ginsburg responded, adding pointedly that “a woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother.'”

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.

The high court has been through other periods of fear and loathing, particularly after its December 2000 ruling that handed the presidency to George W. Bush. This time, ill tempers are colliding with Chief Justice John Roberts’s effort to lower the temperature following last fall’s contentious confirmation of Associate Justice Brett Kavanaugh.

Kavanaugh’s predecessor, Anthony Kennedy, was the last in a series of unpredictable justices whose votes often proved decisive, giving the court a sense of balance it lacks today.

“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,” Associate Justice Elena Kagan said during an appearance at Princeton University on the eve of Kavanaugh’s confirmation. Going forward, she said: “It’s not so clear whether we’ll have it.”

‘Peeks behind the curtain’

The issue that has kept the justices up at night feuding the most this term is nothing new: capital punishment.

Death-row petitions frequently arrive at the 11th hour as lawyers try to save their clients from execution. Sometimes the battle is over the risks of lethal injection. Other times, it’s about the prisoner’s physical or mental health. This term, even the process of giving last rites has raised tempers.

When the court ruled 5-4 in February to permit a Muslim inmate’s execution in Alabama without allowing an imam to provide spiritual support in the execution chamber, Kagan wrote for the liberals that the decision was “profoundly wrong.” Commentators on both sides of the ideological spectrum denounced the court’s decision.

In March, the court reversed itself and granted a Buddhist prisoner in Texas his request for his own spiritual adviser. More than six weeks later, the justices were still feuding over it: Associate Justice Samuel Alito issued a 14-page dissent, while Kavanaugh explained his approval for the second time.

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SOURCE: USA Today, Richard Wolf