Supreme Court justices aren't 'scorpions,' but not happy campers either

[mahatmakanejeeves]

LAW

Supreme Court justices aren't 'scorpions,' but not happy campers either

January 18, 2022 5:00 AM ET
Heard on Morning Edition

NINA TOTENBERG

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It was pretty jarring earlier this month when the justices of the U.S. Supreme Court took the bench for the first time since the omicron surge over the holidays. All were now wearing masks. All, that is, except Justice Neil Gorsuch. What's more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone setup in her chambers. ... Sotomayor has diabetes, a condition that puts her at high risk for serious illness, or even death, from COVID-19. She has been the only justice to wear a mask on the bench since last fall when, amid a marked decline in COVID-19 cases, the justices resumed in-person arguments for the first time since the onset of the pandemic.

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These days, however, the elbows are a lot sharper. Some of it may be attributable to COVID and the bizarre conditions under which the court has had to conduct its business, without the usual set of of full, in-person interactions. ... At the same time, many 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. That may stem from the way Roberts became chief justice.

In 2005, the Bush White House was preparing for the retirement of the ailing Chief Justice William Rehnquist, and according to reliable sources, Alito was led to believe that he would be nominated to become chief justice. But Rehnquist did not retire at the end of the term in June, as expected. Instead Justice Sandra Day O'Connor did, and President George W. Bush, after a botched effort at naming a woman, picked Roberts to be O'Connor's successor.

Then, just as Roberts' confirmation hearing was about to start, Chief Justice Rehnquist died. ... Bush, who had hit it off with Roberts in their interview, immediately moved Roberts up, withdrawing his nomination as associate justice and instead nominating him to be chief justice. That allowed Roberts' confirmation hearing to move forward almost on schedule and right away. And Alito was instead slotted into the now empty position to replace O'Connor, his expectation to be chief dashed into smithereens. ... If Rehnquist had died a month later, and Roberts had already been confirmed to replace O'Connor in the interim, perhaps Alito would in fact have been nominated to be chief justice. But that was not to be.

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[question everything]

1. Not surprising that Bush had a better rapport with Roberts than Alito