Conservative firebrand Antonin Scalia died two years ago Tuesday and thrust the US Supreme Court into months of tumult with only eight justices.
As it turns out, the court might be having a harder time with nine.
The justices have issued only four signed decisions since their session began in October, down from the average of roughly 10 by this time of the year over the past half decade.
Friction among these nine appears deep. In a 5-4 decision in January on the dusty topic of deadlines for dual federal and state claims, Justices Ruth Bader Ginsburg and Neil Gorsuch, Scalia’s successor, clashed.
Each called the other’s legal rationale “absurd.” Writing for the majority, Ginsburg scoffed at Gorsuch’s “history lesson” on behalf of the dissenters. In response, Gorsuch scorned the Ginsburg majority’s evidence and deemed its reasoning “unusual and out of place.”
That may be an ominous sign for negotiations on the much tougher, more consequential disputes the court faces, for example, on partisan redistricting, President Donald Trump’s travel ban and retailers who decline to serve gay people based on religious objections.
The court is ideologically split between conservatives and liberals, so conflicts are to be expected. Yet, Chief Justice John Roberts has long encouraged greater consensus and clarity, arguing that splintered opinions can leave lower court judges — and the nation — confused about the law.
The court was hardly conflict-free in the 14 months with only eight justices after Scalia’s death; many rulings were narrowly crafted and ambiguous. But justices from both sides of the ideological divide appeared to put extra effort toward agreement, to avoid 4-to-4 splits.
“We didn’t want to look as though we couldn’t do our job,” Justice Elena Kagan said last summer. “And so we worked very, very hard to reach consensus and to find ways to agree that might not have been very obvious.”
The effort, she added, sometimes “led to a kind of silliness,” when they could reach only minor agreement, but “the process was very good in terms of finding ways (toward) consensus.”
A 5-4 split emerges again
Whatever cooperative spirit developed then appears to have faded now.
With the addition of Trump-appointee Gorsuch, a former Denver-based US appeals court judge, the Supreme Court has resumed the posture of five Republican-appointed conservative appointees and four Democrat-appointed liberal appointees.
Gorsuch appears more solidly on the far right than Scalia and has strongly aligned himself with the staunch conservative Justice Clarence Thomas.
As soon as he joined the bench last April, Gorsuch began writing more opinions (in dissent and as concurring statements) than most of his colleagues. His provocative writings may be spurring the other justices to take more time to respond.
During oral arguments, Gorsuch has demonstrated an interest in counterintuitive theoretical approaches. That was seen in a November case testing whether the Constitution requires police to obtain a warrant before demanding data about a cellphone user’s location from companies that provide cell service. Gorsuch focused on the property rights of the cellphone user to the stored data, rather than the privacy expectations that concerned most of the justices.
Gorsuch’s tone during arguments can be haughty, which has sparked tensions, and he has bucked some institutional practices. He declined to attend a private session with the other justices soon after he was sworn in, causing a rift with Roberts.
Still, it is difficult to know precisely what might be happening behind the scenes to hold up the production of opinions. When the justices meet to vote and thrash out cases, they are alone in a room off the chambers of the chief justice, without any law clerks or secretaries. When drafts of opinions are circulated among the nine chambers, they are closely held within the building.
Whatever the reasons, it is plain that cases are knottier for these nine than might have appeared at the outset. There could be a ripple effect into the spring and early summer, as the court tries to resolve all its cases by the last week in June.
Scalia’s sudden death
Scalia, a 1986 appointee of President Ronald Reagan, had served nearly three decades and was about to turn 80 when he died at a hunting resort in Texas on February 13, 2016.
At the time, Democratic President Barack Obama had nearly a year left in his term, and it looked as though his appointment of a successor would tip the divided court toward the liberal side for the first time in decades. (Since 1969, a succession of Republican presidents had filled most of the vacancies that arose.)
Obama nominated Merrick Garland, chief judge of the US Court of Appeals for the District of Columbia Circuit. But Republican Senate Majority leader Mitch McConnell blocked all action on his nomination, saying the spot should be filled by whoever won the November 2016 presidential election.
That turned out to be Republican Donald Trump, and within days of his January 20, 2017, inauguration, Trump chose Gorsuch.
For nearly a year before that and then as the confirmation process unfolded, the eight justices faced a handful of deadlocks but worked to split their differences on cases.
An example was a compromise decision in a dispute over the Affordable Care Act’s requirement that employers provide contraceptive coverage. The justices gave both sides a partial victory in the case brought by religious groups.
Justice Stephen Breyer, who took a lead in those behind-the-scenes negotiations, said in a public appearance last year that work with just eight was not as difficult as might be expected. He stressed that the justices, as a group, seek a measured approach on social issues.
Compromise likely mattered most to Roberts, whose name is informally affixed to this court. “Throughout this whole process,” he said at an event last spring after the Gorsuch confirmation hearings ended, “the Supreme Court has been quietly going about its business of deciding the cases before it according to the Constitution, in a completely nonpartisan way.”
That was debatable then and could be more so now. Many pending cases are politically charged, including two (from Wisconsin and Maryland) testing whether redistricting maps were impermissibly gerrymandered to favor one political party over the other.
The justices also are scheduled to hear the simmering dispute over Trump’s restrictions on immigrants from certain Muslim-majority countries.
The long-serving Scalia, for his part, was no natural compromiser. (“I love him,” Ginsburg once told me, “but sometimes I’d like to strangle him.”)
Scalia was known for sharp dissenting views on social dilemmas such as women’s equality and same-sex marriage, and remarked that he liked “to tell the majority to take a walk.”
While Gorsuch lacks Scalia’s spirited style, the newest justice emphasized to the conservative Federalist Society in November that he adheres to the “originalism” and “textualism” methods made popular by Scalia. Under the former, judges look to the 18th century understanding of the Constitution, and in the latter approach, narrowly interpret a law’s text rather than turn to congressional reports and other legislative history.
Vowed Gorsuch, “Neither one is going anywhere on my watch.”