Disorder in the Court

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Scalia can always be counted on to pick a fight, but what has changed this year is that other Justices, once relative wallflowers, are increasingly emboldened to fire back in kind. In February, Ruth Bader Ginsburg, ordinarily a model of judicial composure, gave a speech in South Africa attacking critics in Congress who have assailed her citations of international law as an offense against U.S. sovereignty. Those criticisms, she said, "fuel the irrational fringe" and have encouraged threats on her life. She singled out Scalia, who had called the consultation of "alien law" a form of "sophistry."

Is the recent round of attacks and counterattacks a sign of internal animosity? Not necessarily. Ginsburg and Scalia, after all, are old friends, united by their love of opera and good cooking. For years they have spent New Year's Eve together, along with their spouses. (Ginsburg's husband Marty often cooks.) Certainly, there's nothing on the Roberts court resembling the antagonism among the Justices that raged after World War II. Consider the blood feud between Hugo Black and Robert Jackson, both appointed by Franklin Roosevelt. Jackson thought F.D.R. had promised to promote him to Chief Justice, but after a vacancy arose in 1946, Black threatened to resign if Jackson became Chief. That led Jackson to fire off an unhinged letter to President Harry Truman and Congress, accusing Black of unethical behavior. The '40s produced another nasty rivalry: Felix Frankfurter was so intellectually condescending to Chief Justice Fred Vinson that during one of the Justices' private conferences, Vinson rose from his seat and nearly punched Frankfurter in the nose. After Vinson died unexpectedly of a heart attack while the court was deciding Brown v. Board of Education in 1953, Frankfurter declared on the train back from the funeral, "This is the first indication I have ever had that there is a God."

By contrast, the Justices of the Roberts court are able to attack one another vigorously in public while maintaining cordial relations in private. Thomas, for example, has told students groups that he has never heard an uncivil word uttered at the Justices' conferences during his time on the court. And despite the disagreement in the military-tribunals case, Thomas is on good terms with his ideological opponent Breyer, who has praised Thomas' skills as a lawyer and photographic memory in technically complicated cases.

It's a good thing for the court and the country that the Justices of the Roberts court seem to be finding a way to disagree vigorously without taking it too personally. During his confirmation hearings, Roberts said, "It's my job to call balls and strikes and not to pitch or bat." Nevertheless, the court under his leadership will continue to decide some of the most momentous questions of American life. It has already agreed to hear important cases next term on the boundaries of affirmative action and abortion. Those are questions about which all the Justices have extremely strong views, and the fact that they are not shy about expressing them helps citizens on both sides of the issues feel as though their own views have been strongly represented and thoroughly aired.