Opinion: Tensions on the Supreme Court are spilling into view
The Supreme Court building in Washington. By Josh Blackman April 15 at 2:25 PM Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and an adjunct scholar at the Cato Institute.
Tensions on the post-Kennedy Court are now spilling into view. Maybe we can mediate. My recommendation: Conservatives should agree to a three-day delay to handle last-minute capital punishment appeals; liberals should resist the urge to go public. The court, and the country, would be better for it. But in response, Breyer wrote an impassioned dissent, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. He shined light on the shadow docket and explained the justices’ late-night deliberations. Breyer “requested that the Court take no action until” its regularly scheduled conference on Friday. He said the “delay was warranted” so the justices could hash out the issue in person. His conservative colleagues disagreed.
Breyer and his colleagues can see the writing on the wall. At some point, the court will institutionalize Gorsuch’s “jaundiced” review of capital appeals. And going forward, there will be five votes to tip the scale in favor of the state on such last-minute claims. This recognition likely nudged Breyer to criticize how his colleagues manage their internal deliberations.
Breyer and his colleagues must have made a calculated decision: Highlighting the method with which the court reviewed the appeal was worth the cost of diminishing collegiality on the court.
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