By Noah Feldman
What was remarkable about Justice Brett Kavanaugh’s first day of public work at the U.S. Supreme Court was … that there was nothing remarkable about it. To see Justice Elena Kagan joking with him before Tuesday’s oral argument and to hear him ask wholly unexceptional questions was to see the overwhelming power of the Supreme Court’s unwritten norms at work. Tradition, courtesy and collegiality were the order of the day.
What was visible to reporters in public was certainly also the case in private. You can be sure that in the robing room, where the justices all shake hands before coming out from behind their red velvet curtain, Kavanaugh was treated like any other new member of the court. When the court sits privately in conference, Kavanaugh, as the junior justice, will be opening the door to anyone who knocks — as per tradition.
There’s a reason for these rituals, and it’s almost exactly 180 degrees opposed to the intense Senate battle over Kavanaugh’s confirmation.
The Senate is a political body, and the process of its giving advice and consent over the confirmation of a justice is a deeply political process, especially in our current era.
But the Supreme Court functions internally as though it were totally isolated and cut off from partisan politics. The justices treat one another with exquisite politeness and even a good deal of formality. They are communicating to themselves and to the world that in their minds, they aren’t politicians — they are judges.
None of this is an accident. Nor are the justices naïve about how politics and the judiciary interact. Rather, the justices’ customs are part of a considered choice about how to treat the institution.
The justices know that there have been times in the past when collegiality broke down and some of the justices actively hated each other. Of the nine sitting now, all seem to believe that this occasional past state of affairs was pathological for the court. The current justices know they would rather sit on the court characterized by collegiality and politeness — not because they always agree on outcomes, but because they recognize that when the stakes are very high, they often do not.
The point of the ritual gestures of courtesy is to generate de facto courtesy, even when emotions are running high. The handshakes in the robing room are a case in point. They remind the justices that they are a court of nine — not precisely a team, but certainly a collective body that can only make decisions as a group.
In the modern history of the court, only one justice has broken the handshake norm. That was Justice James McReynolds, a Woodrow Wilson appointee who is often considered the nastiest person ever to have sat on the court. McReynolds was a racist and anti-Semite, and he made the point clear by refusing to shake hands with Justice Louis Brandeis. No modern justice is going to follow that precedent.
The order of seniority observed by the justices might at first appear to work against collegiality. But in fact it has the opposite effect, because each justice passes through the various stages. That there is a junior justice at a given moment reminds the others of when they started — and that this is, in fact, lifetime employment. It’s better to get along with your colleagues, because you’re stuck with them until one of you retires or dies.
Courtesy need not mean friendship. Today’s justices are not particularly known for socializing together outside work. When Justice Ruth Bader Ginsburg and the late Justice Antonin Scalia would go to the opera together, that was newsworthy. Collegial relations, however, facilitate normalcy in a job that, let’s face it, isn’t especially normal.
So why are the justices all in on acting so decidedly apolitically? One reason is that many of the cases they decide aren’t especially political. Those of us who write about the Supreme Court don’t like to spend much time covering the nonpolitical cases, because frankly, we don’t want to bore you. (We, of course, are all Supreme Court nerds and would secretly like nothing better than to write breezy, entertaining columns about ERISA cases.)
More important than the run-of-the-mill cases, however, are those highly politicized cases in which the justices break down on ideological lines. With the retirement of Justice Anthony Kennedy, those ideological lines are going to be frequently partisan, measured by the party of the president who nominated the justice.
The justices get this. But they want to maintain the objective of nonpartisanship. That goal isn’t fully attainable in the real world, they know. But acting as though they aren’t partisan is intended to try to make them less so. No one elected the justices, and they know it. In their own minds, they want to make decisions on the basis of the law, not politics. Maintaining customs of courtesy helps them tell themselves that their function is legitimate, after all.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.