A few weeks ago, I asked Adam Liptak, Times correspondent for the Supreme Court, to preview major cases this would constitute the end of the tribunal’s mandate. Adam was prophetic, correctly foreseeing every major decision. Today, he returns to the newsletter, answering my questions about the atmosphere behind the scenes of the court.
David: The last few months have been some of the most unusual in the Court’s modern history — a major leak followed by an abortion decision which, as you wrote, will change American life in a major way. Inside the pitch, do you think things feel different as well?
Adam: The Supreme Court building has been closed to the public since the start of the pandemic. Then, shortly after the leak in early May of a draft opinion that overturned Roe v. Wade, the courthouse was surrounded by an eight-foot fence. Still cloistered and remote, the courtyard is now impenetrable.
The release of the decision in the abortion case highlighted another way the court retreated from public scrutiny. For unexplained reasons, the judges stopped announcing their decisions from the bench, abandoning a tradition that was both ceremonial and enlightening. It used to be that the majority opinion writer would give a quick, conversational summary of the decision that could be extremely valuable to a reporter on deadlines and, by extension, to members of the public trying to understand a decision.
Even more important were oral dissents, reserved for rulings that the minority justices believed to be deeply flawed. Ordinarily, one or more of the three dissenting liberal justices in the abortion case would have raised their voices in protest. These days, the court simply publishes PDFs of its decisions, depriving the occasion of ceremony, drama and insight.
So the lawyers who argued the cases and the journalists covering the court are informed of the decisions in the same way as everyone else — by refreshing their browsers. But the judges have returned to the courtroom for arguments, haven’t they?
Yes, they took a different approach with arguments. After hearing from them over the phone for much of the pandemic, the judges returned to the bench in October. Journalists holding press credentials with the Supreme Court were allowed to attend and the public could listen to the live audio broadcast on the Court’s website. It is unclear why the opinions could not be announced in the same way.
I haven’t been to the courthouse since the last oral argument of the current term on April 27, when Chief Justice John Roberts waved goodbye to outgoing colleague Justice Stephen Breyer. But there is every reason to believe that the leak, the investigation it sparked, the controversy over Judge Clarence Thomas’ failure to recuse himself from a case that overlapped with his wife’s efforts to overturn the election and the judges’ very real security concerns have made the court an unhappy place.
In remarks in May, shortly after the leak, Judge Thomas explained how things had changed at the court for an 11-year period without a change in its composition before Chief Justice Roberts arrived in 2005. “This is not the court of that time,” Judge Thomas said, adding: “We actually trusted each other. We may have been a dysfunctional family, but we were a family.
A less collegial court appears to be particularly problematic for the three liberal justices. There are now five Republican-appointed justices who are even more conservative than Roberts. If the court is a less collaborative place, I imagine that gives minority justices — both the Liberals and, in some cases, Roberts — less ability to shape decisions.
Yes, although it is possible to exaggerate the power of collegiality. Judges vote based on the strength of the relevant arguments and desired outcomes, not the sympathy of their colleagues.
The judges say there is no trading of votes between cases, and I believe them. On the other hand, there are certainly negotiations within the files. It seems pretty clear, for example, that Justices Breyer and Elena Kagan changed their position in part of the 2012 case that upheld a key part of the Affordable Care Act to ensure they would get the Chief Justice Roberts vote on another part.
The justices may well be willing to narrow or reshape a draft opinion that seeks to speak for a majority of five justices in exchange for one vote. But once the author gets to five, the value of another potential vote drops. It is this dynamic that must worry the liberals of the court.
On Thursday, Justice Breyer officially retired and swore in his replacement, Justice Ketanji Brown Jackson. How do judges usually welcome a new member?
When a new justice joins the Supreme Court, tradition dictates that the second-youngest justice throws a small party. In 2006, for example, when Judge Samuel Alito came on board, that task fell to Judge Breyer, who knew his new colleague was a Phillies fan. Before dessert was served, Judge Breyer introduced a special guest: Phillie Phanatic, the team’s mascot.
This year, Judge Amy Coney Barrett is the second most junior judge and will likely be in charge of Judge Jackson’s welcoming celebration.
And now that the court is on recess until October, what do judges usually do?
They often give classes in exotic locations. In 2012, for example, after voting in favor of the Affordable Care Act, Chief Justice Roberts left for Malta to teach a two-week course in the history of the Supreme Court. “Malta, as you know, is an impregnable island fortress,” he said. “It seemed like a good idea.”
Learn more about Adam Liptak: He began his career at The Times as a copyist in 1984, fetching coffee for editors and writing occasionally. After studying law and a stint at a Wall Street law firm, he returned to the paper in 1992, joining its corporate legal department before joining the newsroom as a reporter a decade later. He reads a lot and plays a lot of poker.
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