06 November 2012

New Term May Answer Questions About Supreme Court’s Dynamic

by Lauren Gailey, Staff Writer

WASHINGTON, DC - As the United States Supreme Court settles into its 2012-2013 term, the Court faces not just questions of law, but questions about its own internal dynamics as well.

Last June, the Court announced its controversial decision to uphold the Obama administration’s Patient Protection and Affordable Care Act – a decision made possible only when Chief Justice John G. Roberts, a conservative appointed by George W. Bush, crossed ideological lines to uphold the constitutionality of the Act’s individual mandate. In doing so, the Chief Justice disappointed conservatives nationwide. It was widely rumored that he disappointed his conservative Court colleagues as well, particularly Justice Antonin Scalia.
© Piers Morgan/CNN

Rumors of a feud between Roberts and Scalia abounded throughout the summer, despite the latter’s denial of any infighting during a rare interview on CNN’s “Piers Morgan Tonight” on July 18. Scalia told Morgan that he was offended by the public criticism of Roberts, especially the allegations that the Chief Justice’s vote in the case was politically motivated. Emphasizing that the Court is “not a political institution,” Scalia said, “I don’t think any of my colleagues . . . vote the way they do for political reasons.”

© Tim Sloan / AFP - Getty Images
Despite Justice Scalia’s denials, the tales of a feud persisted, culminating in September with the publication of The Oath, Jeffrey Toobin’s book on interplay between the Roberts Court and the Obama administration. Toobin, a CNN Supreme Court analyst and writer for The New Yorker, fanned the flames of the rumors, calling Scalia “furious” and “enraged” at Roberts for switching his crucial vote. Toobin claimed that the dispute was far from one-sided, as Roberts had changed sides precisely because he was unhappy with Scalia and the other conservatives for their insistence on striking down the Affordable Care Act in its entirety.

The validity of these rumors, however, ultimately remains rooted in speculation. During an October 15 appearance at a Duquesne Law School Federalist Society event, Brian Fitzpatrick, a Vanderbilt Law professor and former clerk to Justice Scalia, addressed a similar issue when Dean Ken Gormley asked him whether the notoriously politically fraught Bush v. Gore decision in 2000 negatively affected the climate of the Court. Professor Fitzpatrick, who clerked during the term following that case, indicated that while some hard feelings lingered among the law clerks, the justices themselves displayed no such tension and remained “collegial.”

Professor Fitzpatrick explained that the justices place great importance on maintaining this collegial atmosphere despite their differences.  As an example of this dedication to separating the personal from the professional, he pointed out that Justice Scalia’s closest friend on the Court is none other than his ideological opposite, Justice Ruth Bader Ginsburg.

Duquesne Law School Adjunct Professor and retired Pennsylvania Superior Court Judge Maureen Lally-Green’s appellate court experiences echo Professor Fitzpatrick’s observations.  Interestingly, Judge Lally-Green also used the word “collegial’ to describe the dynamic of the Superior Court. The goal of a court, she emphasized, is “to get to the truth.”  In doing so, she and her colleagues did not always agree, but those disagreements “didn’t come from a place of anger, or a place that wasn’t positive.” Personal feuds, Judge Lally-Green said, were not part of her experience as an appellate judge. “We may disagree,” she said, “but we need not be disagreeable.”

Lauren Gailey is a second-year day student at Duquesne Law and is currently a Legal Intern for the U.S. Attorney's Office for the Western District of Pennsylvania. Over the summer, Gailey worked for the U.S. Attorney's Office, where she filed several briefs for the Child Exploitation Section of the Criminal Division and developed expertise on the constitutionality of the Sex Offender Registration and Notification Act. One of her briefs was submitted to the Department of Justice's Child Exploitation and Obscenity Section Brief Bank for use by DOJ attorneys nationwide.