On April 15, the Supreme Court’s Public Information Office released a remarkable three-sentence statement. In that statement, Justice Sonia Sotomayor called remarks that she had recently made about a colleague “inappropriate” and “hurtful,” and she indicated that she had apologized to that individual.
Although Sotomayor did not identify the colleague by name, anyone paying attention knew to whom she was referring: Justice Brett Kavanaugh. Specifically, at an April 7 appearance at the University of Kansas Law School, Sotomayor criticized Kavanaugh for his solo concurrence in Noem v. Perdomo, a case involving immigration stops. In that opinion, Kavanaugh explained why he thought the stay preventing some of the government’s such practices was warranted. Even if U.S. citizens or individuals in the country lawfully were stopped by immigration officers, he wrote, the stops are “typically brief, and those individuals may promptly go free” after proving they are “legally in the United States.” Without naming him, Sotomayor suggested that Kavanaugh had come from privilege, as “a man whose parents were professionals” and who “probably doesn’t really know any person who works by the hour.” As Amy noted, remarks like Sotomayor’s were extremely unusual, and the formal apology that followed only underscored how far outside the ordinary they fell.
But that was not the only intra-court criticism this spring. In a Yale Law School lecture on April 13, Justice Ketanji Brown Jackson delivered a sustained critique of her conservative colleagues’ emergency orders in favor of the Trump administration, calling them “scratch-paper musings” that can “seem oblivious and thus ring hollow.” In that regard, Jackson described roughly two dozen orders from last year allowing controversial Trump administration policies on immigration and federal funding to take effect after lower courts found them (likely) unlawful.
And Justice Clarence Thomas, speaking on the same day that Sotomayor’s apology was issued, lamented that he had “joined the court that dealt with differences as friends,” strongly implying that was no longer the case. Thomas also criticized those who “recast themselves as institutionalists, pragmatists, or thoughtful moderates, all as a way of justifying their failures to themselves, their consciences and their country.” (The Wall Street Journal quoted a political scientist who said, “It certainly sounds like [Thomas is] talking about John Roberts.”)
All of which raises a natural question: are moments like these truly rare in the court’s history? The short answer is yes – but they are not entirely without precedent.
The first feud(?)
Perhaps the earliest known feud took place between John Jay, the nation’s first chief justice, and John Rutledge, an associate justice – although not when they were on the court together.
Their dispute began when Jay negotiated the controversial “Jay Treaty” with Great Britain in 1794, which aimed to maintain peace between the two countries. (Among other things, it settled claims for American citizens who had their property damaged by the British during the Revolutionary War.) But Jay was seen by many as too sympathetic to the British, and the congressional fight over the treaty’s passage is even said to have led to the creation of national political parties. When Jay resigned to become governor of New York in 1795, President George Washington tapped Rutledge – who had served briefly as an associate justice before resigning in 1791 – to replace him as a recess appointee.
Following his appointment, Rutledge gave a fiery speech in Charleston, South Carolina, denouncing the very treaty his predecessor had negotiated, allegedly declaring that he “had rather the President should die than sign that puerile instrument.” The Federalist-leaning press, which supported the treaty, pilloried Rutledge and circulated rumors of his mental instability. The Senate subsequently rejected Rutledge’s formal nomination as chief justice that December by a vote of 14 to 10 – the first time the Senate had ever voted down a Supreme Court nominee. A distraught Rutledge, to date the chief justice with the shortest tenure in history, then attempted to drown himself but was saved by two enslaved men who witnessed the incident.
Marshall and his first dissenter
In assuming the role of chief in 1801, John Marshall encouraged his colleagues to adopt unanimous decisions delivered by a single voice (that is, without any public disagreements or separate opinions by each justice). This held for several years.
That is, until President Thomas Jefferson (Marshall’s “long-time foe”) appointed William Johnson from South Carolina as a counterweight to Marshall, believing the young justice’s non-Federalist views would break the chief justice’s grip on the court. Johnson’s colleagues, however, found him disrespectful, with Johnson being a great deal younger than the rest of the bench but lording over it, and at times writing separately in direct opposition to Marshall – which likely undermined his ability to build coalitions against the chief justice in the first place. Nevertheless, Johnson persisted, writing roughly half of all dissents under the Marshall court and fervently rejecting the “practice of silent opposition that had been adhered to by the other Justices.” Indeed, after issuing his first concurrence, Johnson reported to Jefferson that he “heard nothing [from his brethren] but Lectures on the Indecency of Judges cutting at each other.”
Taney and Curtis
The mid-19th century produced a new, and arguably higher stakes, intra-court dispute. In 1857, Chief Justice Roger Taney delivered the majority opinion in Dred Scott v. Sandford – widely considered the worst decision in the court’s history – holding that Black Americans could not be citizens of the United States under the Constitution. Justice Benjamin Curtis responded with a dissent that prompted Taney to delay issuing the majority opinion by several weeks while he added (what Curtis estimated to be) “upwards of eighteen pages” of rebuttal. “No one can read [the opinion] without perceiving that they are in reply to my opinion,” Curtis said.
During this time, Taney withheld the full text of the majority opinion from Curtis – and when Curtis asked Taney for an explanation (suggesting it was a violation of the court’s rules to withhold the opinion for so long), Taney wrote: “It would seem from your letter to me … that you suppose you are entitled to demand it as a right, being one of the members of the tribunal. This would undoubtedly be the case if you wished it to aid you in the discharge of your official duties. But I understand you as not desiring or intending it for that purpose.”
The conflict then spilled beyond the courtroom. Taney accused Curtis of leaking his dissent to the press for political purposes; the public could read Curtis’ dissent in full, but only a summary of the majority opinion was available (Taney did not release the full opinion immediately, which he continued to revise) – giving “Republicans a definite advantage in the war of words” that Taney found embarrassing. Taney wrote that he “observed that the opinion of the Court ha[d] been greatly misunderstood and grossly misrepresented in publications in the newspapers.”
Curtis denied the accusation, but the acrimony had become irreparable. He resigned from the bench that September. In letters to friends, Curtis cited his inadequate salary, but some have noted that the internal discord following Dred Scott, and his rancorous relationship with Taney, were also key factors in his departure from the court.
McReynolds
The early 20th century brought another ugly dispute. When President Woodrow Wilson appointed Louis Brandeis as the first Jewish justice in 1916, this antagonized at least one sitting colleague: James McReynolds, whom Wilson had appointed two years earlier.
A militant antisemite, McReynolds refused to speak to Brandeis for the first three years of Brandeis’ tenure. He would rise and leave the room whenever Brandeis spoke during the justices’ private conference, while also refusing to sign any opinions written by him. When Benjamin Cardozo, who was also Jewish, was being considered for the court in 1932, McReynolds joined his two colleagues, Justices Pierce Butler and Willis Van Devanter, in urging the White House not to “afflict the Court with another Jew.” President Herbert Hoover did not listen. During Cardozo’s swearing-in ceremony, McReynolds pointedly read a newspaper (muttering the words “another one”), and he did not sign the farewell letter when Brandeis retired in 1939. (Indeed, there is no official photo of the 1924 court because McReynolds would not sit next to Brandeis.) Later on, McReynolds refused to attend Felix Frankfurter’s investiture, decrying “another Jew on the Court!”
Repulsed by McReynolds’ actions, Chief Justice William Howard Taft once described him as “selfish to the last degree” and “fuller of prejudice than any man I have ever known.”
The Black-Jackson feud
Perhaps the best-known example of justices attacking one another in public was the 1946 feud between Justice Hugo Black and Justice Robert Jackson – which legal scholar Steve Vladeck has described as involving “one of the more impertinent public statements ever made by a sitting Justice.”
By way of summary: Jackson was the fourth in a quartet of Roosevelt appointees, joining the court in 1941 that included Black, Justice William O. Douglas, and Frankfurter. Jackson and Black had little in common in terms of their backgrounds beyond their historical support for the New Deal: Black came from the deep South and Jackson from New York, and while Black had been a former senator, Jackson had very little practical political experience.
The two feuded over process and jurisdictional questions almost from the start, with Jackson scolding Black for making everything personal. As Jackson once said of his fellow justice, “[y]ou just can’t disagree with him. You must go to war with him if you disagree.” He also remarked that “[w]ith few exceptions, we all knew which side of a case Black would vote on when he read the names of the parties.”
Black did not retaliate publicly, although he was not entirely passive; rumors soon circulated in Washington that Black and Douglas had leaked to reporters that they would resign if Jackson were appointed as chief justice.
Things came to a head following the death of Chief Justice Harlan Fiske Stone in the spring of 1946. Jackson, then in Nuremberg serving as the chief U.S. prosecutor at the war crimes tribunal, became convinced that Black had lobbied President Harry Truman against appointing him to the court’s center seat — although Jackson had understood FDR to have promised him this. When Truman instead nominated his Treasury Secretary, Fred Vinson, Jackson sent a public cable to both congressional judiciary committees, making public what had previously been an intra-court dispute. In particular, he drew on an internal fight over whether Black should have participated in an earlier labor case, Jewell Ridge Coal Corp. v. Local 6167, given that Black’s former law partner had argued for the prevailing side. During the case, Jackson and Frankfurter had wanted to write a statement questioning Black’s participation, but Black had fought back, and a bitter argument ensued at the justices’ conference. As Jackson’s telegram put it, if “war is declared on me, I propose to wage it with the weapons of the open warrior, not those of the stealthy assassin.”
According to Vladeck, who cited Professor Dennis Hutchinson, this cable is the only time in the court’s history that a justice “publicly accused another of unethical behavior and of manipulating the decision-making process for personal ends.” Black responded with “dignified silence,” “ever concerned about public actions that might tarnish the public’s image of the Supreme Court,” and “even when publicly pummeled by one or more of his brethren … insisted on remaining silent in public.”
Both men resumed a working relationship after Jackson returned from Nuremberg that fall. But Jackson wrote in a private memo that their disagreements were “intellectual matters, fundamental to their respective characters. They are not likely ever to be reconciled to each other’s viewpoint, however much each respects the other’s ability.”
The (other) Black feud
The other major feud of the mid-20th century on the court also involved Black, as well as Douglas — in a decades-long clash with Frankfurter. The latter two had begun as close friends and New Deal allies. In fact, when Roosevelt named Douglas to the court, Frankfurter had been enthusiastic, saying that Douglas was “badly” needed on the bench: “We shall have a man who is historic-minded about the law, but also knows that history is not a tale of dead things but part of a dynamic process.”
Upon arriving on the court in 1939, Frankfurter had expected to help lead it, having studied the institution for 25 years as one of the country’s most respected law professors, watching it, as he once said, “as closely as a mother would a sick child.” Frankfurter took that metaphor a little too seriously, however, often treating his colleagues as children in need of correcting rather than his brethren.
From the start, Frankfurter and Black clashed over court doctrine and the role of the judiciary, with Douglas siding with Black. While Frankfurter believed courts should emphasize process and defer to legislatures whenever possible, Black and Douglas saw a more powerful judiciary as vital to a healthy society.
This intellectual dispute quickly became personal. Frankfurter “took the refusal of the brethren to follow his lead as a personal affront, and unfortunately allowed full play to his considerable talent for invective.” At the justices’ private conference, he would speak for exactly 50 minutes — the length of a Harvard lecture, as Justice Potter Stewart recalled — and Douglas could be “absolutely devastating” in his attacks on Frankfurter – both personally and professionally – afterward. On one occasion, Douglas told his colleagues: “When I came into this conference, I agreed in the conclusion that Felix [Frankfurter] has just announced. But he’s talked me out of it.” And when bored during Frankfurter’s talks, Douglas would simply leave the table and go to a sofa, where he would lie down until his colleague was finished speaking.
In his private writings, Frankfurter referred to Black, Douglas, and their allies as “the Axis” (among the worst insults possible during World War II) and described Douglas, in diaries and letters, as one of “the two completely evil men I have ever met,” “malignant,” and “the most cynical, shamelessly amoral character I’ve ever known” (along with a Yiddish epithet for bastard). Douglas returned the treatment, referring to Frankfurter in private as “Der Fuehrer,” “a little bastard,” “Machiavellian,” “divisive,” and a “prevaricator.”
The conflict arguably had institutional costs. By the 1943-44 term, 58% of court’s decisions came down with divided opinions – the most in the court’s history. Frankfurter himself complained near the end of the next term about “an increasing tendency on the part of members of the Court to behave like little schoolboys and throw spitballs at one another” — apparently without recognizing his own role in the problem.
The conflict survived even the court’s private attempts at resolution. In November 1960, Douglas drafted a memo, which he ultimately did not send after Chief Justice Earl Warren persuaded him otherwise, threatening to withdraw from the justices’ conferences entirely while Frankfurter remained on the bench. “The continuous violent outbursts against me in Conference by my Brother Frankfurter give me great concern,” he wrote. “But he’s an ill man; and these violent outbursts create a fear in my heart that one of them may be his end. I do not consciously do anything to annoy him. But twenty-odd years have shown that I am a disturbing symbol in his life.” The conflict persisted until Frankfurter’s retirement in August 1962, forced by a stroke. Douglas did not attend Frankfurter’s funeral three years later.
The modern court
The recent past offers one instructive – and ultimately more hopeful – relationship. In his 2015 Obergefell v. Hodges dissent from the court’s ruling on same-sex marriage, Justice Antonin Scalia insulted his colleague Justice Anthony Kennedy’s majority opinion in unusually acerbic terms (even for Scalia). He called the opinion “couched in a style that is as pretentious as its content is egotistic,” “profoundly incoherent,” and “lacking even a thin veneer of law.” Scalia took things even further in a remarkable footnote, stating that he would “rather hide [his] head in a bag” than sign it, and that “[t]he Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” And, commenting on the court’s lack of geographic diversity (and how that reflected on its jurisprudence), Scalia stated that Kennedy was not a “genuine Westerner” because “California does not count.”
According to Kennedy’s memoir, Life, Law & Liberty, the episode damaged their relationship for months: Scalia stopped coming to group lunches and no longer stopped by to chat. Kennedy’s children were, he writes, “devastated” by the dissent’s tone. By Kennedy’s account, however, in February 2016, Scalia walked down the corridor to Kennedy’s chambers and apologized for having been so intemperate. The two men hugged. But it was the last conversation they ever had; Scalia died in Texas about a week later.
Why now?
What distinguishes the current moment from past episodes of intra-court tension is not any single incident but the concentration of them — and, more importantly, their apparent cause. Some observers point to the interim docket as the primary engine of the current friction.
In her September dissent from the court’s unsigned order in Trump v. Slaughter (in which the court agreed to hear the case of FTC Commissioner Rebecca Slaughter and paused the district court’s order preventing Slaughter’s firing without citing cause for doing so) Justice Elena Kagan wrote that this docket “should never be used, as it has been this year, to permit what our own precedent bars.” Kagan was referring to the court’s 1935 ruling in Humphrey’s Executor v. United States, which held that when Congress creates independent, multi-member regulatory agencies, the commissioners can only be removed “for cause.” Still more, she added, it should not be used to transfer “government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.” Sotomayor has likewise condemned what she called “grave misuse[s] of our emergency docket.” (Recall, too, that it was an interim docket order that triggered Sotomayor’s now-retracted remarks at the University of Kansas School of Law.) As CNN summarized in April, the interim docket has been “at the center of several recent instances of tension between the justices spilling out into public view.”
The structural differences of the interim docket – not just its substance – may also contribute to this. Merits cases generally arrive with full briefing, oral argument, and time for the justices to work through their disagreements before any opinion is circulated, much less published. Interim docket decisions frequently offer no reasoning at all, so for justices who disagree with those orders, the only recourse – in some ways – is through a public dissent, because there is no reasoning to which to respond in the opinion. This means that what might otherwise be an internal disagreement becomes, by necessity, a public one.
Whether the current tensions will harden into the kind of lasting personal enmity that defined the Black-Jackson or Frankfurter-Douglas era remains to be seen. But the historical record at least offers grounds for some cautious optimism. The court has survived feuds far more personal and sustained than anything on display this spring – and has emerged, if not unscathed, at least intact. The McReynolds-Brandeis antipathy endured for more than two decades. The Frankfurter-Douglas war outlasted one justice’s career. Even Jackson’s public telegram, which seemed to many observers to threaten the court’s legitimacy, eventually faded. The institution survived. It should here, too.