In the past, U.S. Supreme Court justices often had radically different views yet managed to disagree without being disagreeable. Liberal Justice Ruth Bader Ginsburg and far-right socially conservative Justice Antonin Scalia, a Reagan appointee, vehemently disagreed on numerous occasions, yet there was a certain respect between the two of them. And libertarian Justice Anthony Kennedy, another Reagan appointee, was the wild card who often sided with Scalia on economic matters and with Ginsburg on social issues like abortion and gay rights.
But these days, it isn’t unusual to read reports on tensions between the High Court’s Democrat-appointed minority and its GOP-appointed right-wing supermajority. Justice Sonia Sotomayor has even used the word “stench” to describe the Court’s current direction.
NBC News’ Lawrence Hurley, however, reports that according to Justice Brett Kavanaugh, stories about the Court’s tensions are exaggerated.
In an article published by NBC News’ website on January 27, Hurley explains, “Conservative Justice Brett Kavanaugh said the Supreme Court is not as divided as members of the public might think, praising his liberal colleagues and highlighting rulings in which the justices were not divided along ideological lines in a recent public appearance.”
The public appearance Hurley refers to was at Notre Dame Law School.
“Kavanaugh had special praise for the late liberal Justice Ruth Bader Ginsburg, the recently retired liberal Justice Stephen Breyer and Breyer’s successor, the liberal Justice Ketanji Brown Jackson, saying she ‘has hit the ground running’ and is ‘thoroughly prepared,’” Hurley notes. “Ginsburg and Breyer ‘couldn't have been better at welcoming me to the Court,’ Kavanaugh said, referring to his nomination by then-President Donald Trump in 2018. He joined the Court after having barely survived a Senate confirmation process in which he faced accusations of sexual misconduct dating back decades, all of which he denied.”
During his speech, according to Hurley, Kavanaugh “appeared eager to counter any perceptions that the Court is usually divided along ideological lines, pointing out several cases in which he had joined liberal justices in 5-4 decisions.”
Kavanaugh said, “There are great relations among all nine justices both personally and professionally. We only get tough cases, and we disagree on some of those. I think that's more nuanced than it is sometimes portrayed.”
Steven Mazie, in an article published by the Atlantic on January 16, cites the Dobbs ruling as something that set off an “obvious departure from collegiality” among the justices, but Kavanaugh disagrees that such a departure has occurred.
One of the cases that Kavanaugh mentioned was a 5-4 ruling in Conception v. United States, a criminal case decided on June 27, 2022. Sotomayor authored the majority opinion in that case, and she was joined by Justice Clarence Thomas and Justice Neil Gorsuch.
Another decision in which Democratic and GOP appointees found some common ground in 2022 had to do with a Trump-era immigration policy. In that 5-4 decision, Roberts and Kavanaugh concurred with the three Democratic appointees and allowed President Joe Biden to end Trump’s “remain in Mexico” policy.
Adding to criticism of the Court is the outcome of an investigation into the leak of the Dobbs v. Jackson Women’s Health Organization ruling. Before the ruling was officially released, a leak of a draft opinion by Justice Samuel Alito was given to Politico — and showed that the Court would be overturning Roe v. Wade. But the Court’s investigation failed to name who leaked Alito’s opinion.
Sarah Lipton-Lubet, president of the progressive group Take Back the Court Action Fund, told BuzzFeed News, “The Supreme Court’s report on the Dobbs leak raised more questions than it answered — namely, why were the justices not investigated with the same rigor and to the same lengths as every other employee of the Court?”