This time of year is typically quiet for the Supreme Court. It’s in between terms, and the justices have delivered the big opinions and likely announced any retirements by now.
But over the past few days, a handful of them have been making waves for talking about the politics of the court. Justices Amy Coney Barrett, Clarence Thomas, and Stephen Breyer have all been talking about the role the judicial branch plays in U.S. government.
Barrett, the newest member of the high court, recently said at a private event in Kentucky, “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”
Loyola Law School professor Jessica Levinson notes that she said this at the University of Louisville’s McConnell Center, which is dedicated to Sen. Mitch McConnell. He ushered in her confirmation.
“You would think that if you want to say, ‘Look, we are not about partisanship, we are not about politics,’ then you don’t say it at the McConnell Center [while sitting] next to Mitch McConnell, who as we all remember, blocked Merrick Garland from even having a hearing for the Supreme Court, and then said, ‘Yes absolutely,’ with six or eight weeks to go before the election, ‘let’s have that hearing for Justice Barrett.’”
Days later, Justice Clarence Thomas spoke at the University of Notre Dame (where Barrett used to work), warning against the court overstepping its bounds: “[When] we begin to venture into political — the legislative or executive branch lanes, those of us, particularly in the federal judiciary with lifetime appointments, are asking for trouble.”
Thomas is saying the court needs to make very narrow, constrained decisions that stick to what the Constitution meant when it was ratified, Levinson explains. “We know that that translates almost in all cases to conservative wins, but he’s trying to explain to us why his legal philosophy will translate into political wins for Republicans.”
Justice Stephen Breyer, the elder statesman of the court’s liberal wing, told NPR’s Nina Totenberg: “Politics isn't the right name, and nor is it right to think that every case reflects those things. But that's what you’re talking about when you write about differences of view. … That's inevitable with human beings. … You are who you are. You can't jump out of your own skin.”
Levinson says, “He’s trying to pick up on this theme … which is, ‘Look, we might have a specific worldview, but we’re not politicians.’ … Across the board, what you see the members of the court saying is, ‘We’re not your elected officials. Sometimes this will look like a win for Republicans, but we’re doing it based on legal philosophy, not political philosophy.”
The law professor notes that in the upcoming term, the court will make big decisions about abortion, gun control, affirmative action, and religious freedom v. freedom from anti-discrimination — and everybody should get ready for more conservative decisions.