The losers throw spitballs, even on the Supreme Court
The advanced state of ad hominem political attacks in the United States has spread to the Supreme Court’s own justices – at least from the outnumbered liberals there. The three dissenters from last Friday’s abortion case did more than offer their legal reasons for differing with the majority. They directly attacked the honesty and integrity of their fellow justices on the other side of the issue.
Perhaps they consciously decided to follow the noxious lead of Senate Majority Leader Chuck Schumer (DNY), who threatened two of the justices on March 2nd this now-famous comment:
I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind and you will pay the price. You won't know what hit if you go forward with these awful decisions.
Schumer yelled that threat into a bullhorn on the steps of the Court itself.
The country has grown accustomed to this kind of bullying and hyperbolic rhetoric from Schumer. But even more disturbing, at least to me, are the multiple personal attacks from Breyer, Sotomayor and Kagan in their dissent in the abortion case. I don't think anything like what they wrote has ever appeared before in a Supreme Court decision.
Below are four such attacks from the dissent that I copied, along with citations to where they appear [emphasis added by me]:
1. Dissent, p.5 [full .pdf at p.152]: So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.
2. Dissent, p.6 [full .pdf at p.153}: The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, “contributes to the actual and perceived integrity of the judicial process” by ensuring that decisions are “founded in the law rather than in the proclivities of individuals.” Payne v. Tennessee, 501 U. S. 808, 827 (1991); Vasquez v. Hillery, 474 U. S. 254, 265 (1986). Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law. We dissent.
3. Dissent, p.11 [full .pdf at p.158]: We make one initial point about this analysis in light of the majority’s insistence that Roe and Casey, and we in defending them, are dismissive of a “State’s interest in protecting prenatal life.” Ante, at 38. Nothing could get those decisions more wrong.
4. Dissent, p.14 [full .pdf at p.161]: As an initial matter, note a mistake in the just preceding sentence. We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation. Indeed, the ratifiers—both in 1868 and when the original Constitution was approved in 1788—did not understand women as full members of the community embraced by the phrase “We the People.”
Sounds much more like the many crazies on TV news or at the New York Times than Justices on the Supreme Court. In terms of the Times, I refer, of course, to the lead editorial on June 25th, which included these words:
The presence of these individuals on the court is the culmination of a decades-long effort by anti-abortion and other right-wing forces to remake the court into a regressive bulwark.
By the majority’s reasoning, the right to terminate a pregnancy is not “deeply rooted” in the history and tradition of the United States — a country whose Constitution was written by a small band of wealthy white men, many of whom owned slaves and most, if not all, of whom considered women to be second-class citizens without any say in politics.
Surprisingly, I didn't find any personal attacks directed at Justice Thomas in the dissent. It’s hard to know why. One possibility is that Breyer, Sotomayor and Kagan decided that Thomas was "hands-off" in terms of personal invective because Thomas is Black, opening them to the charge of racism.
Now is the time to stop this vitriol before it’s too late, before it impacts the way the Justices conduct business. It’s long past time to stop it in the Senate and the House and at the White House. It should never have shown up in any Supreme Court opinion. Let’s hope we don’t see it again.