Justices say Supreme Court split by philosophical — not partisan — differences, but timing works against them
By Robert Barnes,
Timothy D. Easley AP
Two Supreme Court justices are attempting to convince the public that the divides on the court are a result of differing judicial philosophies, not partisan motivations.
Justice Amy Coney Barrett, making her most visible public remarks since being confirmed to the court last year, told a Kentucky crowd Sunday that the justices do not take partisan outcomes into account when deciding cases.
“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” she said, according to a report in the Courier-Journal. Instead, she said, competing judicial philosophies control the way the justices look at the legal issues before them.
But the setting for Barrett’s remarks prompted immediate blowback on social media: She was talking to guests at an event marking the 30th anniversary of the opening of the McConnell Center at the University of Louisville.
It is named for Sen. Mitch McConnell (R-Ky.), who as Senate majority leader was instrumental in Barrett’s nearly party-line confirmation vote after President Donald Trump nominated her to replace Justice Ruth Bader Ginsburg, who died last September.
McConnell pushed for Barrett’s confirmation even as voters began voting to deny Trump a second term. He said her confirmation was the capstone of his efforts to make the federal judiciary more conservative, including the confirmation of three Supreme Court justices nominated by Trump.
McConnell introduced Barrett at the event, and praised her for not trying to “legislate from the bench” and for being from “Middle America,” noting that the Notre Dame law graduate is the only current justice who didn’t attend Harvard or Yale.
The pushback was swift. “If Justice Barrett wants the Supreme Court not to be seen as partisan, she should avoid being hosted by a center named after the most partisan person in America,” said Gabe Roth, leader of a Supreme Court reform group called Fix the Court.
“There’s value in members of the high court speaking to audiences outside of Washington, but that concept is corrupted when stretched to rationalize appearing at events that look and sound like political pep rallies,” he said in a statement.
Barrett said the public perception of the court is driven by media accounts of its decisions.
“The media, along with hot takes on Twitter, report the results and decisions. . . . That makes the decision seem results-oriented,” she said, according to the Courier-Journal report. “It leaves the reader to judge whether the court was right or wrong, based on whether she liked the results of the decision.”
The court doesn’t allow cameras in the courtroom, nor does it allow live audio broadcasts of its decision announcements. It did allow live audio of its oral arguments last term, when it held hearings via teleconference because of the coronavirus pandemic.
The Washington Post
Justice Stephen G. Breyer discusses his new book during an August interview in his Washington office.
Meanwhile, Justice Stephen G. Breyer continued a book tour in which he, too, has evangelized that the justices are not “junior league” politicians but are deciding cases based on the way they look at the law.
He was asked about Barrett’s remarks in an interview on Washington Post Live with columnist David Ignatius.
“I do agree with what I think the approach is that she’s taking there,” he said. “You know, as I’ve said, it takes some years, and you then gradually pick up the mores of the institution. And the mores of the institution — you’re a judge, and you better be there for everybody, not just the Democrats, not just the Republicans.”
But Breyer acknowledged that the court is divided in many high-profile cases and noted especially a recent decision allowing Texas’s restrictive abortion law to go into effect while legal battles continue.
“I did think it was very wrong, and I wrote a dissent,” Breyer said. “The dissent gave my reason, and the timing wasn’t very good for my book because it’s pretty hard to believe in a case like those that come along that we’re less divided than you might think, but here we are. Sometimes people, as I did in that case, do feel pretty strongly, and then you’re not going to get compromise.”
As in other interviews, the 83-year-old Breyer declined to talk in detail about the unprecedented pressure he has received to retire so that President Biden can appoint a successor while Democrats are in control of the Senate.
He has said he will take into consideration his health, which appears good, and other factors, including how it would affect the court.
“When I’m ready to announce something, I will,” he said, adding: “I’m the one ultimately responsible to myself, and so when I retire is when I made the decision. I have to be convinced that in my own mind, I am doing what I think is the right thing to do, both for the court and for myself.”