U.S. Supreme Court

Anonymous Justices Say Supreme Court Collegiality Will Return in the Fall


Updated: The Supreme Court’s divisions over the Obama administration’s health care law aren’t likely to last into the next term, according to justices who spoke to a legal publication.

The justices spoke to the National Law Journal on condition of anonymity.

One justice said the term was “certainly hard,” but colleagues respect the court as an institution. “My guess is we’ll come back in the fall and have the opening conference and it will be almost the same,” the justice said. “I would be very surprised if it’s otherwise.”

Another justice said the term always starts out friendly and relaxed, but there is an “overlay of frustration” as cases pile up.

A CBS News report had said Chief Justice John G. Roberts Jr. switched sides to uphold the health care law, spurring conservative justices to write an unusual unsigned dissent. The conservatives’ intent was to send a message to Roberts by refusing to join with parts of his opinion with which they agreed.

The justices who spoke to the NLJ mentioned two other difficult times in recent court history: Bush v. Gore and the 2006-07 term, when liberals lost cases dealing with racial diversity, abortion and religion. “Life goes on,” one justice noted.

The Volokh Conspiracy says it’s unclear whether the justices commented before the leaks to CBS News. The blog notes the reference to Bush v. Gore; five current justices were on the court at the time: Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer. “If the dissenters in Sebelius [the health law decision] are as mad about the case as some have suggested, they would be less likely to have offered such conciliatory words, which would suggest Ginsburg and/or Breyer,” the blog says. “But who knows.”

Updated at 10:50 a.m. to include information from the Volokh Conspiracy.

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