Supreme Court's Lesson: Hey political Branches, What About Civility?

September 1, 2011Aug— -- Congress and the White House returned to Washington from an August recess to argue about, of all things, a scheduling confict for an upcoming speech. A far cry from the third branch of government; members of the Supreme Court took to the speech circuit to praise their branch of government as a bastion of civility.

Elena Kagan, the junior justice on the court, told an audience in Aspen this month that her biggest surprise since joining the court was "how well and respectfully the members of the institution operate together".

She described the court as an "incredibly collegial and warm institution" with good friendships that transcend "whatever people think of as ideological divides."

Justice Stephen Breyer shared a similar message.

"We have nine justices who don't always agree," he told an audience in Toronto in August , "but I've never heard a voice raised in anger in 17 years in that conference room".

And this week Justice Ruth Bader Ginsburg lamented the bitter atmosphere surrounding senate confirmation hearings of late. In 1993 Ginsburg was confirmed by a vote of 96-3 after spending years working at the liberal American Civil Liberties Union on the issue of gender equality.

"I wish we could wave a magic wand and go back to the days when the process was bipartisan, " she said, according to the Associated Press.

"Today, my ACLU connection would probably disqualify me, " she said.

This summer the justices seemed to be sending a subtle smoke signal of sorts to their neighbors across the street on Capitol Hill.

Kagan was quick to differentiate the collegial atmosphere at the court from the "sharp give and take" evident in the court's written opinions. Indeed, Kagan proved last term that in her own dissents she is not shy with a pen.

In one major campaign finance case, the court struck down a key provision of an Arizona public financing law.

Kagan, writing for herself and the three other dissenting justices, struck back. She pointed out the law had been passed to fight corruption, and she chastised the majority for questioning the sincerity of the state's interest.

"[T]he majority claims to have found three smoking guns that reveal the State's true (and nefarious) intention to level the playing field. But the only smoke here is the majority's and it is the kind that goes with mirrors."

By the end of the term, Kagan's active participation from the bench, coupled with her masterful writing skills earned her comparisons with Justice Antonin Scalia --the reigning king of bold and brilliant prose.

Scalia's combative tone, however, is not always appreciated by his colleagues.

Witness his dissent last term from an opinion written by Justice Sonia Sotomayor in a case about the Sixth Amendment's Confrontation Clause that guarantees a criminal defendant the right to confront witnesses.

He accused the majority of reaching a "patently incorrect conclusion on the facts."

And he wasn't finished.

"But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief;" he wrote. "It affects after all, only the case at hand. In its vain attempt to make the incredibly plausible, however--or perhaps as an intended second goal--today's opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort."

Justice Ginsburg, who is not only his ideological opposite but also his best friend on the court, makes clear that Scalia attacks ideas not colleagues.

In 2008 Ginsburg told 60 Minutes correspondent Lesley Stahl that she can be exasperated with Scalia's style at times.

But, she continued, "As annoyed as you might be about his zinging dissent, he's so utterly charming, so amusing, so sometimes outrageous, you can't help but say 'I'm glad that he's my friend' or he's my colleague,'" she added.

Civility hasn't been lost on Chief Justice John Roberts either. During President Obama's 2010 State of the Union address, the president took a rare crack at a recent court decision that had invalidated decades old federal legislation restricting corporate expenditures for electoral advocacy. Democratic senators sitting close to the justices stood up and cheered the president's words. The justices sat stoned-faced during the applause.

Roberts created a firestorm a few weeks later when he questioned whether justices should attend the event. He told an audience, "to the extent it has degenerated into a political pep rally, I'm not sure why we are there."

But the following year, Chief Justice Roberts showed up again with five of his colleagues.

Historically civility on the court has waned at times (read Harvard Professor Noah Feldman's book about four Roosevelt appointees aptly titled Scorpions), but retired Justice Sandra Day O'Connor has taken on the issue as one of her retirement projects.

After the shooting in Tucson that killed federal judge John M. Roll and six others and wounded Congresswoman Gabrielle Giffords, O'Connor called not only for civility in the community but in government as well.

"We must reject violence and hostility, " O'Connor, an Arizona resident, said in a statement, "and bring civility and rational dialogue into our government and community life."

Kagan suggests the court might be different from the political branches because the justices know they will deal with each other for a long time. In her talk in Aspen she told a story of how Chief Justice Roberts was the first to call and warmly congratulate her after her confirmation.

"You know we are going to be serving together for 25 years" he told her.

"Only 25? " she responded.