May 1, 2023
Looking askance at the law: The jurisprudence of anger
The nature, custom, and practice of opinion writing at the Supreme Court (and all other appellate courts as well) tells us how much trouble we're in. In Dobbs, the other like-minded justices in the majority signed on to not just the opinion's holding but to its tone and attitude as well. Only Chief Justice Roberts would have no part of it and concurred only in the judgment.
As we near the first-year anniversary of Dobbs, we need to look at the decision's true meaning in the context of the bargain we have struck with the Supreme Court. We grant it legitimacy in exchange for a jurisprudence that is responsible both to history and to society. Instead, we got the disgrace that is Dobbs and the beginning of a jurisprudence of anger.
We hardly need to speculate as to what was going on with zealous cultural warrior Samuel Alito when he wrote the majority opinion in Dobbs overruling Roe v. Wade. He laid out his contempt for abortion supporters with a venomous and angry opinion. Gratuitously so. His opinion was anger written into law - with more of the same to come. (We might not trust Clarence Thomas to truthfully report gifts he has received, but we can trust his concurring opinion in which he reveals that he has a list of Fourteenth Amendment substantive due process rights that should be revoked.) We must ask: How did this happen? How did we get to such a perilous place?
We've seen angry Supreme Court justices before, though the anger was different in kind instead of degree. Two notable examples over the past hundred years provide us with historical context for today's phenomenon:
The first example includes the dissenting opinions in the 1930s from the Four Horsemen of the Apocalypse - Justices Pierce Butler, George Sutherland, Willis Van Devanter, and James McReynolds). McReynolds, in particular, railed against the Court's turning away from freedom of contract and individualism in commercial cases and toward the New Deal sensibility of collectiveness. McReynolds wrote scathing opinions attacking the Court's changing jurisprudence and sometimes raged in public when he read his dissents from the bench.
McReynolds was a terrible person who did not work well with others on the Court. But the anger of his opinions should not be confused with his personality. What matters most about McReynolds and his other Horsemen is that in their opinions they were fighting on an ideological front. That, at least, is the opinion of William Leuchtenburg - the most distinguished historian of their period. Their opinions were anger rooted in principle. We have come to acknowledge that dissents of this sort have a place in the Court's jurisprudence. They are written in good faith, and to repeat, argue principles. Justices should be able to write this way, with sharp edges on matters of great import. After all, the stakes at the Supreme Court are high.
The second example involves personal feuds in the 1940s and early 1950s which dominated the Court. These feuds featured conservatives Robert Jackson and Felix Frankfurter fighting it out with liberals Hugo Black and William Douglas. No flashing helmets of the Iliad here. Instead, we have raised voices and punches nearly thrown. Jackson thought he should succeed Harlan Fiske Stone as chief justice and sent a screed laced with anger from Germany (where he was prosecuting Nazi war criminals) denouncing Black when Black was rumored to be in line for the job. Disgraced, Jackson threatened to resign (in anger). Although he relented, he never recovered his stature on a now fractured Court. For his part, the once liberal Frankfurter - though ever a Brahmin at heart - was so angry at having his offered leadership on the Court rejected in favor of Black and Douglas, that he metaphorically cut off his nose to spite his face. Frankfurter then evolved into a zealous judicial restraint conservative, even though the doctrine had been made far less applicable, if not obsolete, by a changing America. He's remembered mostly for disrupting the functioning of the Court with the scheming invective he used on colleagues and for his conference table-pounding harangues aimed at showing his colleagues how stupid he thought they were. Frankfurter, with his bruised ego and personality-based anger, illustrates everything a Supreme Court justice should not be. Color his behavior shameful.
This takes us to Alito's anger in Dobbs, which has its roots in Justice Scalia's appointment to the Court in 1986 and the performative anger of his many dissents. This is not bruised ego or personality-based anger. It runs much deeper and reflects an unhappiness with the world as it is. Scalia, as a good Reagan Republican, wanted to reshape America and followed Republican prompts. Once appointed, his dissents firmly supported the Republican party line, rather than the Constitution advanced by Attorney General Ed Meese. This was Scalia's attempt to reorientate the federal judiciary to his backward glance of history. His early dissents then evolved into a type that was never before seen in the U.S. Reports - eloquent and angry towards colleagues who disagreed with his worldviews. The angrier the dissents, the better they played with the reactionary Republican base. This made him a cult hero to this crowd and gave him the attention he craved. Who knows how much he actually believed in originalism? He practiced originalism with benefits, allowing him to stray and conveniently ignore its demands when they did not suit his purpose. His angry dissents, while without effect, inspired not just the Fox News crowd but also the sometimes angrier and more reactionary dissents of Clarence Thomas. Together they gave supposed intellectual credibility to the reactionaries in the culture wars. They became warriors in those wars and were followed by Samuel Alito and company. They marched lockstep with the political anger of reactionary Republicans. Then, with Scalia ironically gone, the Trump Administration's hijacking of the appointment process let loose this anger and changed the Supreme Court forever. Now their anger no longer just fumes in dissents. Their mantra could be Scalia's "just get over it" comment about Bush v. Gore and how they are in control, and we are at their mercy.
If nothing else, Dobbs is the most majority brazen opinion rendered by the Supreme Court. It ritually goes through multi-factor tests in an embarrassingly one-sided way, dismissing fifty years of precedent with distorted arguments despite decades of public polling reporting that society is in favor of abortion rights. Then there's the women's rights argument that Alito dare not address. Fifty years of the lived American experience didn't slow Alito down one bit. To not follow precedent, to violate Holmes' exhortation that the life of the law is not logic but experience, Alito needed to immunize himself from the effects of history. He could do this because in his world, as a front-line member of the resistance, time had stood still since the issuance of Roe. Holmes' wisdom kills originalism with its one strike and rejects the static view of history Alito applies to essentially say that abortion is this new-fangled thing, with no roots in the American experience, which we can disregard if we, the enlightened reactionaries, see fit. Then let the celebrations begin, as in being feted - with Justices Kavanaugh, Gorsuch, and Barrett - by the Federalist Society soon after Dobbs for finding their reactionary holy grail.
But the real import of Dobbs goes beyond Alito. The nature, custom, and practice of opinion writing at the Supreme Court (and all other appellate courts as well) tells us how much trouble we're in. In Dobbs, the other like-minded justices in the majority signed on to not just the opinion's holding but to its tone and attitude as well. Only Chief Justice Roberts would have no part of it and concurred only in the judgment. The others could have insisted that the opinion exhibit calm judicial demeanor and merely recite the legal reasoning supporting the opinion's holding in the hope that the reasoning seemed impartial, but they didn't. They are cut from the same cloth as Alito and have become complicit in the death of fair and impartial justice at the highest levels. This is the new jurisprudence of anger. Color it disqualifying. These angry justices are not fit to sit on the Supreme Court. They have breached their bargain with us.