Hoping for a More Collegial Supreme Court During These Times of Political Bitterness
Justice Amy Coney Barrett was full speed ahead in her first few days on the U.S. Supreme Court. She arrived in the midst of the pandemic and the day before America’s most contentious election in recent memory.
She was sworn in immediately after her confirmation – first at the White House and, the next morning, at the Supreme Court by Chief Justice Roberts. She was assigned Ruth Bader Ginsberg’s chambers and immediately selected her allotment of four clerks, three of whom had clerked for SCOTUS Justices Kennedy, Alito and Thomas. The other was a clerk for Barrett from the 7th Circuit. The five clerks working for Justice Ginsberg were absorbed by the three remaining liberal members of the court.
Every jurist on the high court speaks of the incredibly steep learning curve for the newcomers, regardless of their previous jobs. On Nov. 2, for example, the court heard a case involving the Freedom of Information Act (Fish and Wildlife Services v. Sierra Club) for which a half dozen amicus curiae briefs were filed, in addition to the entire record! For Jones v. Mississippi, 12 amicus briefs came in.
Fulton v. Philadelphia drew more than 90 amicus briefs, consisting of nearly 4,000 pages. Given Justice Barrett’s reputation for thoroughness, she must have spent many a sleepless night in her first week, knowing that the second week would include arguments in California v. Texas, the Obamacare litigation, which was loaded down with another 48 amicus briefs. And these were just the high profile matters.
A formal welcome by the Supremes in the awesome courtroom has not been held because the justices are working remotely, hearing arguments by phone, and going in order of seniority to ask questions of counsel. None of the robust give-and-take which characterizes in person arguments is possible. Barrett took her turn, asking intelligent, provocative questions from the outset.
One of the great traditions of the court, begun by Chief Justice Melville Fuller (sitting from 1888 to 1910) is the “handshake.”
Before every argument, in the robing room, every justice shakes the hand of every colleague, as a symbol of their common cause and collegiality. This ceremony is repeated before each conference. Barrett has not yet shared in this ritual. For Barrett, the “shake” has to be put off until the justices are working in person.
The first woman appointed to the court was Sandra Day O’Connor, named by President Ronald Reagan in 1981 and confirmed 99-0. She observed that there was aloofness, even acrimony, among the justices and worked to develop a sense of collegiality.
Evan Thomas, in his biography of O’Connor, said she worked tirelessly to get all the Justices to lunch weekly, going so far as sitting in the outer office of a holdout until he agreed to join the others.
Justice Clarence Thomas called her “the glue” which brought the Court together, according to Thomas’ 2019 book “First: Sandra Day O’Connor.”
Justice Barrett was known at Notre Dame Law School as a kind, generous and compassionate friend and neighbor. Perhaps she can apply these graces – like O’Connor before her – to making the court more collegial in times of political bitterness.
Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.
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