January 18, 2022

"At oral argument, Justice Elena Kagan, one of the court's best questioners, sometimes... just shuts down... Still, her anger is often palpable, the color literally draining from her face. "

"And Justice Stephen Breyer on occasion just holds his head.... There isn't a lot of love lost among the court's six conservatives either.... If you watch carefully, you can see conservative eyes rolling from time to time.... [M]any of the conservatives are vying for the position of intellectual leader of the conservative majority, while the chief justice privately worries about going too far too fast. There are, in addition, some long and perhaps not so buried resentments among the conservatives. Alito on occasion barely conceals his disdain for Roberts.... In recent decades, the court has built its legitimacy on a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted. The left got gay rights and gay marriage, and some limits on presidential power exercised in the name of national security. And the right got expanded religious liberty and expanded free speech, which brought with it expanded corporate spending in elections.... But... the court's conservatives detest each other in the same way that the justices did in the 1940s. Back then, they couldn't agree on anything because, as [Noah] Feldman notes, 'they hated each other.' and even though they might have been able to to reach a consensus, they didn't 'because the hatred was so deep.' To cite just one example of how bad it was, Justice Felix Frankfurter called Justice William O. Douglas 'one of the completely evil men I have ever met.' And Douglas referred to the Austrian-born Frankfurter, who was Jewish, as 'Der F├╝hrer' and that was during World War ll."


The "scorpion" quote refers to "9 scorpions in a bottle," a famous phrase that Totenberg doesn't give a source, perhaps because it's so famous, but perhaps because the usual attribution — to Oliver Wendell Holmes Jr. — seems incorrect. Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices Paperback" begins with the quote "The Supreme Court is nine scorpions in a bottle," attributed to Alexander Bickel, law clerk to Justice Felix Frankfurter, 1952–53, and drops this footnote:

56 comments:

Kai Akker said...

Maybe. But having heard Nina pontificate for far too many years, I would consider the source. She would love this to be the case, one, and two, her views of everything are biased in the usual way.

gilbar said...

not to worry! Once the democrats eradicate the filibuster; and add another 10 Justices
All Will Be Peace and Harmony!

mezzrow said...

I think we can identify the branch of the federal government that has been designated as "the enemy". And so it goes.

Nina's been doing this a long time, hasn't she? She's been around as long as Biden, I think. I particularly enjoyed the tribute to Scalia's wisdom and restraint. Here's the nut graf:

if the conservative majority overturns Roe v. Wade, "as it looks like it probably will, it will be doing something the Supreme Court has never done... in its history, and that is, reverse a fundamental right that ordinary people have enjoyed for 50 years, and say, 'Whoops,... you never really had this right at all." The court, he maintains, "has never turned back the clock of liberty in that way before."

Jamie said...

In recent decades, the court has built its legitimacy on a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted.

Considering that (in my understanding) the Court's legitimacy is supposed to come from reaching correct interpretations of law based on the Constitution (and where the Constitution is silent, on correct application of precedent and/or on wise judgment), I'm unimpressed with this statement.

I'm further unimpressed by the writer's claim that the right "got" "expanded" freedom of religion and freedom of speech, since those rights are supposed to be pretty much unlimited under the Constitution. And though I think gay marriage was more or less rightly decided (rather than "granted" by the conservatives to the left-leaners), I think it should have been decided in the States by their people and legislatures.

How the justices get along is the topic, I guess, but how they do their job is more important to me most of the time.

Is it an election year thing, for the media to talk so much about how nice people are or are not, in person?

Michael said...

In other words, SCOTUS has the same petty rivalries which infects the faculty of any university department.

Misinforminimalism said...

Why would Totenberg provide a cite for the scorpions quote? She didn't provide cites for anything else she said.

Maybe she's 100% right about the tensions (and ambitions) of the Justices, but it reads like it's Totenberg's personal feelings about what's happening, rather than any objective analysis or actual reportage.

Scot said...

There isn't a lot of love lost among the court's six conservatives...

[M]any of the conservatives are vying for the position of intellectual leader of the conservative majority.

... buried resentments among the conservatives.

But... the court's conservatives detest each other


Hmmmm ... which side is Nina on? Is a total mystery. She's supposed to be an objective reporter, right? I smell lots of opinion.

Mike Petrik said...

What Jamie said.
Totenberg sees the judicial branch the way most lefties see it -- as simply another tool available to achieve their policy aims. Principled legal reasoning does not interest them a whit.

Temujin said...

While the court may have always been politicized to some degree (more in some administrations than others), this current court exists in a very different communications time. With social media scurrying up the activists to action on a moments notice, journalism turning into full-on advocacy, and 24/7 bombardment of all of the opinions and suggestions I suspect the Justices think about a number of things- aside from the law itself- before coming to their decisions.

Chief Justice Roberts comes to mind initially, but they all are affected by it. It's no longer just about the law. Not that it was in FDR's time either. But there is much more for the Justices to maneuver around these days. They make it as if there is more to consider than just the law, when really, there isn't.

J Severs said...

@KAI AKKER: I completely agree with you.

Big Mike said...

Sometimes female liberals are so far from the normal that it takes me a while to realize what their stupid little game is. Any restriction on abortion, even if the Court doesn’t do much more than reaffirm Casey, is going to be billed by Totenberg, and dutifully echoed by Althouse and other feminists, as the “end of Roe v. Wade“. Why? Because there are no other cards to play to get voters to vote Democrat in the upcoming election.

Now as to why it should be advisable to elect Democrats when they have worked so hard over 2020 and 2021 to demonstrate that they are incapable of governing, that is a question that is difficult to answer. They had their chance and they blew it. Badly. Our economy still has not returned to the number of jobs that the US had in 2019. Inflation is heating up at 7% and with a PPI of 9.6% it seems guaranteed to get worse. Under Trump we achieved energy independence. Don’t look for that to return as long as Biden, Pelosi, and Schumer are in charge.

So getting feminists to run around with their hair on fire is all they have left.

Breezy said...

Wanna bet NPR itself is infected with the same petty rivalries? Gosh, it’s almost like they’re all humans! Plus, humans in these niche positions will by default have larger egos to feed and massage. This is article is simply gossip.

iowan2 said...

a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted.

The left got gay rights and gay marriage, and some limits on presidential power exercised in the name of national security. And the right got expanded religious liberty and expanded free speech

According to a leftist. That's Totenberg's take on things.

I do note she thinks enumerated rights, protecting speech and religion, are some kind of gift. While gay marriage and abuse of executive power, neither are enumerated in the Constitution, but the court could use them a chits.

Gives insight into how the left views the court. Grandma handing out treats to the kiddies. Not a serious application of the Constitution to the cases the court chooses to take on.

(obviously 'palace intrigue' has switched to SCOTUS, because the White House is such a cluster of raw ineptitude.)

David Begley said...

Nina has got to be as old as Fauci. Go away! Retire!

Whiskeybum said...

Of the three branches of Federal government, Congress is the one where historically, it has been viewed as the place where political energy is most expended; it’s a free-for-all of ideas/legislation/agendas from different political viewpoints. The Presidency was viewed as more unified and uniform, but with a definite agenda leaning, defending itself from attacks from the out-party. The Supreme Court was viewed as the staid, austere, non-partisan group of knowledgeable experts, standing above the fray of the other branches.

Articles such as this one seem to me to be an attempt to break down that view of the Court, and conclude that they are just a bunch of partisans like the rest of D.C. - which may well be true to one extent or the other. But its purpose is to show that dangers lurk in that partisanship for the political parties in the same way as they do for the other branches. This particular article being written by Nina Totenburg means that it’s a signal to the Progressives that the Court is leaning away from their direction. Since the justices are appointed and not directly elected, this poses a danger to the Democrat agenda, so they had better paint a clear picture of the conservative justices partisanship!

Tank said...

Mind reading!

NPR is fake news.

gilbar said...

Serious Question
Is there a more fundamentally racist group, than NPR listeners?

86% of the NPR audience identifies itself as white
More than half make over $75k.
The median HHI of an NPR News listener is approximately $103,000 per year.
https://blog.marketenginuity.com/by-the-numbers-who-is-actually-listening-to-public-radio

Why (WHY?) are these rich white women Allowed to influence our society?

Howard said...

Send NPR $40 and receive an autographed Nina Totebag designed to carry a diverse assortment of organic vegetables and a fresh baggette.

tim maguire said...

I think it would be a bad thing for justices to get too chummy. They have a job to do and that job is more important than their personal likes/dislikes. Professionals, colleagues, respectful, hopefully, but neither too friendly nor too hate-filled. (Though one can understand the disdain for Roberts, who is so determined to be seen as moderate and non-aligned that he is a poor guardian of constitutional principles.)

Howard said...

Gridlock. It's a good thing.

rehajm said...

How does she know these things?

…or is this just fantasy?

What's emanating from your penumbra said...

Why should I believe Nina or Noah? The left has made it clear that they will lie about anything. I assume that whatever they say, the opposite is the truth. Sometimes that may be too far, but you won't get fucked as often as you will believing them.

MikeR said...

There is absolutely no reason for me to believe a single word of her fevered fake mind-reading about the Justices.

TWWren said...

"In recent decades, the court has built its legitimacy on a certain degree of moderation..."

The Supreme irony, of course, is that this form of vacuous moderation does not enhance the court's legitimacy; over time, it destroys it.

Mike of Snoqualmie said...

There is absolutely no reason for me to believe a single word of her fevered fake mind-reading about the Justices.

"It's NPR, Jake." Neobarbarians at work, spreading lies to benefit the Democrat party.

Amadeus 48 said...

The Nina Totebag is biodegradable and will leave nothing behind but your footprints.

Unfortunately, NPR got a great deal on them—they were made in China by Uighurs.

Another old lawyer said...

To Temujin's point about what else Justices consider beyond the law and arguments before them, I started law school in the early '80s, and in those 3 years had more than one law professor note that 'Justices read newspapers, too.'

GRW3 said...

When she lauded Kagan, she lost me, considering the example set by Kagan in the vaccine mandate questioning. Not impressed by Totenberg's thoughts on conservative justices. I did note her thought they were vying for the most intellectual. Using that word with conservatives must have hurt her fingers on the keyboard. Ginsburg was the only one who could claim that title on the left, whose justices are chosen for reliability, not heft.

Joe Smith said...

'[M]any of the conservatives are vying for the position of intellectual leader of the conservative majority...'

None of the newbies are conservative.

Totenberg is a hack.

Sebastian said...

"the chief justice privately worries about going too far too fast."

IOW, he gives priority to political maneuvering over law and argument. Hence his sophistry.

"Alito on occasion barely conceals his disdain for Roberts"

Roberts offers much to be disdainful about.

Hammond X. Gritzkofe said...

Totenberg: "And the right got expanded religious liberty and expanded free speech...."

US Constitution, Amendment 1.: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

Interesting to note that religious liberty and free speech are impliedly not valued by "the left." But what "expanded free speech" did SCOTUS feel able to grant us beyond the Constitutional "no prohibitions?"

Rollo said...

"Nine Scorpions in Bottle" sounds more like an especially strong tequila or a very hot and spicy salsa.

Have you noticed that more and more wines now have numbers in their names, often combined with some gruesome reference, something like "Five Graves Away From Tucson" or "23 Hanged Convicts"? It makes one wonder what is actually in the wine.

I prefer to think of SCOTUS as nine flies trying to figure out a way out of the fly bottle.

Hammond X. Gritzkofe said...

Totenberg: "And the right got expanded religious liberty and expanded free speech...."

US Constitution, Amendment 1.: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech...."

Interesting to note that religious liberty and free speech are impliedly not valued by "the left." But what "expanded free speech" did SCOTUS feel able to grant us beyond the Constitutional "no abridgment?"

(sorry. need to cool my inflamed brain while proofreading before posting.)

Birches said...

Ha! Everyone knows Clarence Thomas is in charge.

I don't believe any of her gossip.

Birches said...

I also can't imagine the justices all hate each other, especially because Thomas is such an affable man.

Mark said...

Why do I suspect that Totenberg is projecting her own feelings and biases?

Iman said...

Yes… consider the source - she of Regulation Clinton Kneepads fame - and remember the drivel and road apples that escaped Feldman’s gob during the Trump Impeachment hearings.

Charlie said...

Nina Totenberg, Michael Beschloss, Doug Brinkley, Doris Kearns Goodman............what the country needs now is a fresh set of Washington insider historians.

Who's with me???

rcocean said...

Totenberg is STILL writing about the SCOTUS? So, no new blood at NPR for what 35 years? Wasn't she covering Bork in 1987? She was responsible for some Jewish Justice who was going to replace the Bork, getting withdrawn when she reported he was a MJ smoker.

Anyway, I have nothing but disdain for Roberts too. Anybody who wants to defend his insane opinion that Trump couldn't recind Obama's Unconstitutional Executive order if welcome to do so. Or his opinion that we couldn't ask people their citizenship on the census. Roberts has shown he's a mediocrity, a liberal, and man without principles. IOW, a Bush Republican.

I didn't like Kavanaugh either. You can start with his blubbering during his confirmation. And he obviously has "Tall man's disease", the belief that because he's supertall he should be in charge and he's smarter than everyone else. I've noticed he CONSTANTLY writes separate opinions, because y'know, he can't just agree 100 percent with anyone. He always has to give us his super-special "Smart Take". And given he clerked for Kennedy it should be no suprise he's constantly flip-flopping from one side to the other, or giving us narrow techncial opinions that just result in more confusion and litigation.

Thuglawlibrarian said...

I don't believe a word Nina Totenberg writes.

Skeptical Voter said...

Ah smart lawyers who can't get along. And I'll posit that, with the possible exception of the wise Latina, the justices on the SCOTUS were all smart lawyers at one time in their lives.

But I spent some time in a couple of law firms in Southern California over the years where there were partners--practicing the same specialty area of the law--who could not stand to be in the room with each other. Each was very capable at what they did, but they just could not get along.

As for Nina Totenberg--and NPR--their world view is baked in the cake and won't change.

Wilson Carroll said...

Is she suggesting William O. Douglas was a conservative??? Because that would be mind-bogglingly dishonest.

But then, it is Nina Totenberg we're talking about.

Gospace said...

Going too far too fast.... Meaning, of course, actually following the actual words of the Constitution when making decisions.

LA_Bob said...

I'm amazed no one has mentioned the friendship of Scalia and Ginzburg. Maybe that's why so much was written about it. It was such a rare thing.

Narr said...

@rcocean959am-

Kavanaugh is tall? I hadn't noticed.

My work had me rubbing shoulders at times with some prominent lawyers-politicians-judges. None of them lacked ego, and few were reticent about their opinions of their rivals, or of the Supremes if asked (or not). People who weren't them, or trying to be, barely rated thought.

I used to have our local NPR station on all the time. Now I have to rush to switch off their hourly news and the long shows of short conversations. They still broadcast good music most of the time, but that's being whittled away too.

Richard Dolan said...

Totenberg as mind-reader, for those who put stock in such things. She certainly knows her audience. And her commentary does tell you something about the source and where she's coming from (where she's always coming from).

Like others upthread, I don't see any reason to trust her judgments about the justices she plainly detests, let alone her views about what their relationships with each other must be like. And same with those that, according to her, are consumed at oral argument by righteous anger. The evidence she cites -- instances of eye-rolling, or a complexion going pale, and the like -- is more like highly subjective fodder for confirmation bias doing its thing rather than fact-based observations.

It's true that they often disagree about important and consequential matters, and at times get a bit steamed up about it. But it's all in a day's work for them, and then they move on to the next case where any one of them could be looking for the fifth vote.

mikemtgy said...

The SC isn’t supposed to “give” anything to a “side”; it is supposed to interpret the Constitution on relevant issues (and avoid looking at non-constitutional issues). The latter is hard enough.

gpm said...

>>I started law school in the early '80s, and in those 3 years had more than one law professor note that 'Justices read newspapers, too.'

"no matther whether th' constitution follows th' flag or not, th' Supreme Court follows th' iliction returns."

Mr. Dooley, aka Finley Peter Dunne, as quoted in Wikipedia (but the "quote" is, i think, still fairly widely known in one form or another), a fine newspaperman from, you should have guessed it, Chicago, over a hundred years ago.

--gpm

gpm said...

Generally speaking, you need to Psircle back late to the Althouse comments to get my intermittent pearls of wisdom.

--gpm

readering said...

Diabetic Sotomayor participating by phone, reportedly because an adjacent justice won't wear a mask on the bench. Personally, I find a necktie more constricting than an N95 mask, but a sign of relations on the Court.

Zev said...

I don't believe anything NPR says about the court's conservatives. Just axe-grinding.

The Godfather said...

"Nina has got to be as old as Fauci. Go away! Retire!" I met Ms. Totenberg when we were both in college (different colleges, in the Boston area) in the early-mid 1960's. So I think she has to be about my age, which is "going on 79". Not quite as old as Fauci, but in the same ball park. I retired almost 6 years ago. I haven't done serious damage to the public interest since then. Can Nina say the same?

Readering said...

You just missed your chance to wish Nina Happy 78th!

Readering said...

Sotomayor and Gorsuch put out joint statement debunking mask story.

Misinforminimalism said...

Well my comment held up pretty well (noting that nothing was well-sourced) given that the Supreme Court has now affirmatively disputed the only real zinger in the article (that Gorsuch was refusing to mask up despite requests from both Sotomayor and the Chief).

MikeR said...

https://twitter.com/ggreenwald/status/1483897309293383684?cxt=HHwWiMC4ubSv7pcpAAAA
Profoundly pathetic.
I don't tend to advocate firing, but surely the punishment should at least be that no one listens to her any more?