Jurisprudence

The Conservative Justices Keep Winning. Why Are They So Mad?

The Supreme Court behind protective fencing
Chip Somodevilla/Getty Images

The Supreme Court stands ready to hand down decisions in almost 30 cases this month, including blockbusters around abortion rights, gun rights, environmental protections, and religious liberty. On this week’s Amicus podcast, Dahlia Lithwick and Mark Joseph Stern discussed the big themes animating an end of term weighted down by an unprecedented leak, judicial infighting, public protests, and an investigation of Supreme Court clerks. Their conversation has been lightly edited for clarity.

Dahlia Lithwick: I am curious about why the justices seem to be simply unworried about some of the Supreme Court pathologies we’ve been talking about this year, whether it’s unreasoned shadow docket orders, or reliance on unreasoned shadow docket orders as though they are now reasoned, or potshots by the justices at the press, potshots at each other, really acrimonious infighting, and the leak itself. And now Justice Clarence Thomas’ recent love song to the much better court under Chief Justice William Rehnquist. What’s the cause and what’s the effect here? I am super curious whether the justices are now of the view that, good, the gloves are off, and now we’re going to act like small children, or if their acting like small children—whether it’s the partisan speeches or the fighting about wearing masks at oral arguments together—is causing the fiction to fall away.

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Mark Joseph Stern: It’s a great question because what we’re seeing right now in terms of demeanor with the justices feels a little counterintuitive. People like Clarence Thomas and Sam Alito are about to get everything they want. They are winning so much. They are prevailing in almost every single major case and a lot of minor ones. Clarence Thomas is writing blockbuster opinions for the first time in his career because he can finally hold together a five-justice bloc, and yet Alito and Thomas have never sounded angrier. They go out and they do these wild partisan speeches complaining about how much they dislike the current court, about how they feel that even the judiciary is adrift, despite the fact that the judiciary has moved toward them, to the right, so dramatically over the last few years.

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My theory of the case is essentially that they watched for decades while the court was center-right or moderate, or occasionally handed down liberal rulings, and the country largely accepted those decisions. The legal establishment accepted them. There was not a call generally to expand the court, and the court’s approval ratings remained high. I think Alito and Thomas feel like they’ve now won fair and square, they’re in the driver’s seat, they’re issuing all of the decisions that they think are right, that they believe are certainly no more radical than same-sex marriage or abortion, and suddenly their approval rating is plummeting.

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Multiple Democratic lawmakers are talking about expanding the court. There is a huge amount of unprecedented and brutal candor in the dissents, not just of Justice Sotomayor, but also Kagan and Breyer, who are finally calling it like it is. I think these conservative justices are deeply frustrated and annoyed that they don’t get the kind of deference and praise that they believe they’re owed, that now that they are in the driver’s seat, people are realizing that the court is, in fact, a corrupted and partisan institution, more so now than in living memory.

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I don’t know if that directly answers your question, but I think that contributes to this dissension among the justices and this discord that we’re hearing about constantly, because I think that they are really mad at the liberal dissenters for pointing out that what they’re doing is, in some ways, illegitimate and incredibly dishonest. I think they’re mad at Chief Justice Roberts for sometimes stepping up, like in that Clean Water Act shadow docket order and signing onto Elena Kagan’s dissent saying this is BS. I think they feel that they are owed a lot more respect than they are currently getting, and that is making them very publicly angry.

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Dahlia: That’s insanely interesting. It also really does explain why Justice Thomas says, Oh, I long for the days of good fellowship and good cheer when I was writing all these angry dissents but I had no power. And now that I have the power, I’m not writing lone, angry dissents. Now I am the guy, and I miss those days. It’s not quite that he misses those days. He just doesn’t quite know what to do with the fact that now that he’s finally won, people don’t like it. It goes to these democracy, minoritarian conversations we’ve been having all year.

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Mark: I agree.

Dahlia: So let’s talk about some of the cases, because there’s a holy-hell, big-deal gun case about to come down, and that the court in a weird way is now playing this—and I don’t mean to laugh because it’s a freaking tragic kind of game of Frogger, where they have to come down with a decision in Bruen that doesn’t also coincide with another day of gun carnage. I don’t know how this decision can come down, massively expanding gun rights, when we are in the middle of a catastrophic amount of national attention to gun death. But can you, before we do that, just for folks who aren’t paying the attention you are, lay out what’s at stake in Bruen?

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Mark: Bruen is a challenge to New York’s very strict concealed carry law, which does not allow individuals to carry a concealed firearm in public unless they can show good cause, some heightened reason why they are fearful for their lives and need to carry a weapon with them. I think it’s very clear that there are five or six votes to strike down this law and require New York to grant a concealed carry permit to any gun owner who wants one. In the process, they will be striking down laws in about seven or eight other states, including California, and affecting millions and millions of people who currently live in jurisdictions where you are not, in fact, generally allowed to carry a lethal weapon with you, hidden in your purse or coat, and pull it out when you personally feel that you are in danger.

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The gun carnage in this country is sick and horrific. But there is a mildly amusing side note about how every time you might expect this decision to come down, there’s another mass shooting. I think that this goes to the #YOLO court. They know that there’s never going to be a good time to hand down this opinion, so I think they’re just going to do it when they’re ready and say to hell with it. If that coincides with some horrific mass shooting that is furthered by their decision, meaning that they will facilitate even more gun violence through this ruling, they don’t care.

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They feel like they’re standing up for the poor little man on the New York City subway at midnight who feels threatened by the Black person who’s standing on the other side of the car. That’s the guy they empathize with. The rest of us, who are afraid of being shot to death, are just not factored into their consideration.

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Dahlia: I want to come back to that empathy point, Mark, because it is such a connector to what we saw in the Dobbs leak, about who gets empathy at this court. It’s something else we talk about a lot. But one of the most memorable clips from the oral argument in Bruen, of Sam Alito making exactly the point that you’re making, was about who is the real loser in New York. It’s not anybody other than the office worker who wants to have a gun on the subway and can’t, while all these lawless murderers and thugs around him have weapons. Mark, this feels like it’s very much of a piece with where you started, about even when you’re winning, you’re still the victim under this construction of the facts.

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Mark: Yes. People like Alito, justices and members of the conservative legal movement, came up in their careers with this victimhood complex. They feel perpetually aggrieved. They feel like the entire legal profession in much of the country is pitted against them, despite the fact that they know the one true way to interpret the Constitution. Here, Alito sounds genuinely outraged on behalf of this imaginary person who, thanks to twisted liberal attacks on the Second Amendment, is not able to defend himself in the dangerous and hellish, Mad Max–style dystopia that he appears to imagine the New York City subway to be. We could go through almost every case and identify who gets empathy and who doesn’t.

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It’s interesting that progressive jurists do sometimes acknowledge that empathy can play a role—famously Justice Sotomayor said so and then had to walk it back to get confirmed. But there is a strain of progressive jurisprudence that says that criminal defendants, the underprivileged, the less powerful, actually do deserve some measure of empathy and consideration about the facts of their lives, their circumstances, when they are going up against, often, a giant corporation or prosecutors who have way more power than they do.

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Whereas the conservative justices have long said that empathy is illegitimate in judging, that there should be absolutely no consideration of an individual’s circumstances which might draw some sympathy, and yet here we have the conservatives very openly empathizing with the guy on the subway facing a mugger, or whatever, and just refusing to extend any empathy to the rest of us who are afraid that someone with a concealed gun is going to murder us in public. They pretend that empathy plays no role, even as it so clearly drives their analysis of the constitutional issues at hand.

Dahlia: One of the things that was really hard to listen to in Bruen was this kind of comedy routine about what kinds of places are sensitive places where you might, in fact, be allowed to regulate guns. It felt like, Ha ha ha, the Columbia University campus, the NYU campus. Ha ha ha, Times Square on New Year’s Eve. This sounded as though a) the justices have already determined for themselves that a sensitive place where you can regulate gun possession is at the Supreme Court; and then b) that we can just spitball based on our own fleeting sense of whether Times Square at New Year’s Eve is or is not a sensitive space, when guns should be regulated. It’s not just empathy. It’s just absolute feelings, impressions, hunches—the opposite of justice.

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