The Brawling on the Bench by Justices Who Must Decide the Law of the Land : Supreme Court: Personal invective among justices has reached a new level of shrillness, and it may undercut the integrity of their rulings.

By Stuart Taylor Jr

March 25, 1990 12 AM PT

<i> Stuart Taylor Jr. is senior writer for American Lawyer Media</i>

WASHINGTON — If recent history is any guide, by June the Supreme Court justices will be sour, sullen and snarling at each other in their opinions.

Last summer, Justice Antonin Scalia called Justice Sandra Day O’Connor’s position in an abortion case “irrational,” “perverse,” “indecisive” and so fatuous it “cannot be taken seriously.” And they were voting on the same side.

Justice Harry A. Blackmun was no less circumspect in dissenting from the court’s decision to cut back abortion rights. He called Chief Justice William H. Rehnquist’s plurality opinion “unadulterated nonsense” reeking with “cowardice and illegitimacy.”

Still, life at the Supreme Court is rather chummy these days. Compared, that is, with the way it used to be.

Consider James C. McReynolds, a choleric, anti-Semitic right-winger. He gave Louis D. Brandeis the silent treatment from 1916 until 1939 and left the room when Brandeis spoke at conference.

Brandeis took this serenely. “McReynolds is one of the most interesting men on the present court,” he told Felix Frankfurter. “I watch his face closely and at times, with his good features, he has a look of manly beauty, of intellectual beauty, and at other times he looks like a moron . . . . I have seen him struggle painfully to think and to express himself and he just can’t do it coherently.”

By 1946, Franklin D. Roosevelt’s court had broken out into such bitter personal feuding that then-President Harry S. Truman lamented, “The Supreme Court has really made a mess of itself.”

It’s less a mess now. But the philosophical divisions are as passionate as ever. And if the antagonisms have run deeper in the past, they have seldom been so public. Opinions of the last two years contain some of the most vituperative attacks on other justices in court history.

The meanest season is June and early July, when the big decisions are published. But there have already been eruptions. Dissenting from a 5-4 decision that made it easier for prosecutors to exclude blacks from juries, Justice Thurgood Marshall accused the majority of condoning “racial discrimination in our system of criminal justice.”

Scalia, writing for the majority, shot back: “Justice Marshall’s dissent rolls out the ultimate weapon, the accusation of insensitivity to racial discrimination--which will lose its intimidating effect if it continues to be fired so randomly.”

A mild exchange, considering Blackmun’s comparison of Rehnquist’s majority opinion in one civil-rights case last year with the “sterile formalism . . . that infected . . . the antebellum judges who denied relief to fugitive slaves.”

Or Blackmun’s dissent in a decision to curb job-discrimination suits that seek proportional hiring and promoting of qualified minorities or women: “One wonders whether the majority still believes that race discrimination--or, more accurately, race discrimination against nonwhites--is a problem in our society, or even remembers that it ever was.”

While Scalia and Blackmun prefer the sledgehammer, others pick up the stiletto. In the job-discrimination case, Justice Byron R. White’s majority opinion quoted a 14-year-old concurrence warning that unduly broad liability could force employers into “a subjective quota system of employment selection . . . far from the intent” of the 1964 Civil Rights Act.

The author? Harry A. Blackmun. White’s implicit message: “Dear Harry: Please can the sanctimony. You used to agree with what we are saying now. You were right then.”

Such oblique jabs, often the work of law clerks, have long been routine. Justices typically take them and even the more combative rhetoric less personally than an outsider might suppose. But Scalia’s excoriation of O’Connor in the abortion case was a watershed in vituperation.

The verbal pyrotechnics reflect the confluence of two recent trends. Justices have become much more willing to vent personal views in public. And since the court’s philosophical balance tipped with President Reagan’s 1988 appointment of Anthony M. Kennedy to succeed Powell, a new conservative majority has taken the offensive on such divisive issues as abortion, affirmative action, the death penalty and church and state. Liberals like Blackmun and Marshall do not practice verbal restraint when hearing their deepest convictions spurned and their life’s work trashed. And the conservatives have sometimes angrily divided, with O’Connor the most frequently accused of apostasy.

How can these people sit down and reason together? They don’t. Indeed, they haven’t for decades.

Rather, the justices reason separately, each working through cases, drafting opinions. Once or twice a week, they meet to state positions and count votes, but there is little debate or persuasion.

Rehnquist once said justices are “as independent as hogs on ice.” The truth is that justices don’t have to harmonize well to do the work.

“The force of the institution is quite strong,” said a recent law clerk. “They shake hands every time they walk into the conference room . . . . Do they love each other? No. But they get along, because they couldn’t get the work done if they didn’t.”

Court insiders discern no deep, personal animosities this year among the combatants in last year’s battles. The court has survived personal feuds far more rancorous than any seen lately.

In the 1940s, four Roosevelt appointees splintered into warring camps, with Justices Frankfurter and Robert H. Jackson, advocates of judicial restraint, allied against William O. Douglas and Hugo Black, the leading judicial activists.

The climax was a public attack on Black in 1946 by Jackson, who hungered to succeed Harlan Fiske Stone as chief justice. Bitterly disappointed when Truman gave the job to Fred M. Vinson after Stone’s death, Jackson blamed Black for plotting against him. He sent a public letter to Congress savaging Black for failing to disqualify himself in a case involving his former law partner.

Frankfurter especially galled his former friend, Douglas. In a 1954 memorandum, Douglas complained that Frankfurter had “rather insolently” refused to answer his question at conference that day. “We all know what a great burden your long discourses are,” Douglas wrote. “So I am not complaining. But I do register a protest at your degradation of the conference and its deliberations.”

In 1960, Douglas drafted but never sent a memo to his colleagues complaining of “the continuous violent outbursts against me in conference by my Brother Frankfurter,” saying that “in the interest of his health and long life I have reluctantly concluded to participate in no more conferences while he is on the court.”

Chief Justice Warren E. Burger, who retired in 1986, had strained relations with several colleagues, especially his boyhood friend Blackmun. Once Richard M. Nixon’s clone on the court, the prickly Blackmun drifted leftward and sparks flew. In a 1986 speech, Blackmun criticized Burger’s approach to assigning opinions: “If one’s in the doghouse with the chief, he gets the crud.”

Justices don’t have to be good friends to do great things. For all the Frankfurter-Jackson-Black-Douglas rancor, Earl Warren got them to join in the greatest single act in the court’s history--the 1954 opinion finding school segregation unconstitutional.

But there is still a serious cost to public brawling on the bench: The more the justices question each other’s basic common sense and good faith, the more they may deplete the reservoir of popular good will that is so essential to their singular role in American life. They might eventually find their rulings dismissed as the work of unelected, unprincipled politicians.

That would be a shame, because public respect for the court is fundamentally well-placed. The justices’ constitutional interpretations owe more to political ideologies than they pretend. But far more than Congress, far more than any recent President, justices reach decisions by searching their consciences, sifting facts and law, trying to do right as they see right.

In the court’s marble temple, the transient and often unwise public passions that drive elections have far less sway than under the Capitol Dome or in the White House. At the court, there is none of the selling of influence for campaign contributions that has soiled the legislative and executive branches.

For all its flaws, the court brings an element of integrity to a government sorely in need of it. Forceful disagreement on matters of principle enhance that role. Inflammatory, personal attacks diminish it.