Supreme Court Justices typically maintain a collegial public relationship despite their profound philosophical differences. Even liberal icon Justice Ruth Bader Ginsburg maintained a legendarily close personal friendship with arch-conservative Justice Antonin Scalia.
But amid the current SCOTUS' rightward lurch, that friendly relationship seems to be fracturing.
This week liberal Justice Elena Kagan called out her conservative colleagues, blaming their recent spate of radically conservative decisions, like its overturn of Roe v. Wade, as damaging the public's trust in the SCOTUS.
Now conservative Justice Samuel Alito, the architect of the decision on Roe, has publicly fired back in comments to The Wall Street Journal in which he stopped short of mentioning Kagan by name but nonetheless made clear he did not appreciate her condemnation.
\u201cSupreme Court justices have taken to publicly bickering over whether recent conservative majority decisions have undermined the credibility and reputation of the institution. | @carolinedowney_ \n\nhttps://t.co/uHUreNkWDm\u201d— National Review (@National Review) 1664464731
The back-and-forth began last week during a speech Kagan gave at Rhode Island's Salve Regina University, in which she implied SCOTUS conservatives abandoned jurisprudence and the Constitution in favor of simply doing the bidding of a radicalized White nationalist, Christian nationalist Republican Party.
As she put it:
“The very worst moments have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions."
"The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process.”
The comments came on the heels of similar statements Kagan made in May, in which she implied the Court has become out-of-touch with the public's ideals, a claim that has been borne out in recent months at least where reproductive rights are concerned.
Speaking to The Wall Street Journal, Alito seemed perturbed by Kagan's observations.
“It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit."
"But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line."
Alito's take ignores the fact three sitting Justices—all Trump appointees—lied under oath about their dedication to upholding Roe V. Wade as settled law during their confirmation hearings.
As for the public, they seem to be on Kagan's side. A June Gallup poll found just 25% of Americans reported confidence in the institution of the Supreme Court, a double-digit drop since 2021.
On Twitter, the Justices' swipes at each other definitely caught people's eye.
Alito's take did not sit well with most of them.
\u201cJustice Alito, obviously referring to Justice Kagan, said \u201cImplying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.\u201d No! It\u2019s politically agenda-driven decisions that cross that line by eroding the Court\u2019s legitimacy\u201d— Laurence Tribe (@Laurence Tribe) 1664468362
\u201c@NRO @carolinedowney_ No need to bicker. It has. Not just the bad decisions though, also the theft of one of the seats.\u201d— National Review (@National Review) 1664464731
\u201c@NRO @carolinedowney_ That would be due to the fact that recent conservative majority decisions have undermined the credibility and reputation of the institution.\u201d— National Review (@National Review) 1664464731
\u201c@NRO @carolinedowney_ When McConnell stole 2 seats and the wife of a Justice is involved with an insurrection as well as a right that\u2019s been settled for 50 years that affects all women, I\u2019d say that would affect the crew and reputation of the SCOTUS.\u201d— National Review (@National Review) 1664464731
\u201c@NRO @carolinedowney_ The Federalist court is the product not of democracy, but of the crushing of democracy, by an alliance between the rich and the religious. Its horrid rulings, so completely contrary to the will of the people, are illegitimate. We the People will not "get over it."\u201d— National Review (@National Review) 1664464731
\u201cSam Alito who destroyed our reproductive rights has the nerve to attack Justice Elena Kagan for questioning the Court\u2019s legitimacy\n\nSam is a partisan religious fanatic who repeatedly lies & uses 13th century jurists to justify policing our vaginas\n\nYou have NO legitimacy you hack\u201d— Lindy Li (@Lindy Li) 1664417815
\u201c@duty2warn This from a man who cites a 17th century case to support a 21st-century decision subjugating women\u2019s rights. We all know the Federalist Society Six are there as a result of a carefully plotted & well executed plan to turn SCOTUS into advocates for the right. #SCOTUSIsCorrupt\u201d— Duty To Warn \ud83d\udd09 (@Duty To Warn \ud83d\udd09) 1664450073
\u201c@duty2warn SCOTUS is illegitimate the moment people who lied are sitting as judges. Yes, the people are still part of a court that hands down rulings that, technically, must be regarded as law. BUT, the court is no longer looked to for its guidance.\u201d— Duty To Warn \ud83d\udd09 (@Duty To Warn \ud83d\udd09) 1664450073
\u201cAlito, last seen yukking it up with other fascists in Rome, is more upset about his integrity being called into question than the fact that he overturned a 50-year-old ruling that will effectively condemn many women to death. \n\nNewsflash, #Scalito: Kagan was right.\u201d— Greg Olear \ud83c\uddfa\ud83c\udde6 (@Greg Olear \ud83c\uddfa\ud83c\udde6) 1664462491
\u201cof course Alito\u2019s own behavior is what undermines the court\u2019s legitimacy, but it crosses a line for Kagan to say so\u201d— \ud835\udc26\ud835\udc1e\ud835\udc1a\ud835\udc20\ud835\udc1a\ud835\udc27 \ud835\udc21\ud835\udc1a\ud835\udc2d\ud835\udc1c\ud835\udc21\ud835\udc1e\ud835\udc2b-\ud835\udc26\ud835\udc1a\ud835\udc32\ud835\udc2c (@\ud835\udc26\ud835\udc1e\ud835\udc1a\ud835\udc20\ud835\udc1a\ud835\udc27 \ud835\udc21\ud835\udc1a\ud835\udc2d\ud835\udc1c\ud835\udc21\ud835\udc1e\ud835\udc2b-\ud835\udc26\ud835\udc1a\ud835\udc32\ud835\udc2c) 1664401440
Conservative Chief Justice John Roberts also criticized Kagan's takes on the Supreme Court's legitimacy. Earlier this month, he implied her objections come down to simple personal beliefs rather than precedent or established Constitutional Law.
He told The Washington Post:
“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court."
He added the Court’s responsibilities don't "change simply because people disagree with this opinion or that opinion or disagree with the particular mode of jurisprudence."
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