Civility on the Supreme Court

The Supreme Court of the United States (SCOTUS) was in the news a lot last week as they decided high profile decisions on affirmative action, the Voting Rights Act, and gay marriage. The Court leaned more conservatively on the affirmative action and Voting Rights Act decisions and more liberally on the two gay marriage decisions. One consistency throughout these big decisions (and many of the lower profile decisions of the term) was that the more liberal justice Ruth Bader Ginsburg was on the opposite side of the decision to the more conservative justices Samuel Alito and Antonin Scalia.

In the American court system, SCOTUS is the highest court in the land. It comprises nine Justices who are presidential nominees with lifetime appointments. As such, the justices often have different ideological bents but have to find a way to serve together for years, or even decades.

The inner workings of the SCOTUS are notoriously mysterious and full of written and unwritten rules about seniority, who writes what opinion, and even little things like who is required to pour coffee for the other justices. There are also unwritten rules about decorum and defined channels for how to express disagreement. Justices are expected to be respectful and cordial to each other and confine their divergence to their written dissenting opinions which, in the cases where they strongly disagree, can be read from the bench after the majority decision is handed down.

Ginsburg and Scalia have been serving together for a long time. Scalia has been on the court since 1986 and Ginsburg has served since 1993. They have always been on different sides of the ideological coin and have had different ways of interpreting the Constitution and the rules of law. However, Supreme Court lore tells that they have a genuine friendship outside of work attending the opera together and regularly socializing together with their respective spouses.

On the four high profile cases this session, Scalia joined the majority on the affirmative action and voting rights cases while Ginsburg wrote blistering dissents which she read from the bench. Ginsburg joined the majority on the two gay marriage cases while Scalia wrote, and read, his own scathing dissenting opinions. While these two clearly have different ideas about how to interpret the Constitution there is no reason to think that their disagreements this week are going to negatively affect their relationship.

On the other hand, Justice Alito, who joined with Scalia on all four decisions, seems to place less value on preserving this collegiality. While Ginsburg was reading her dissent on the Voting Rights Act case, Alito was reported to be rolling his eyes, shaking his head, and looking at the ceiling. He is also reported to have rolled his eyes while Justices Elena Kagan and Sonia Sotomayor were speaking in recent weeks. While we don’t know exactly what happens behind the scenes, it appears unlikely that Alito is spending his weekends socializing with any of the more liberal justices.

There are ways, in any workplace to have disagreements with people without resorting to unprofessional antics. The Supreme Court has a more clearly defined structure than most organizations through its system of opinions and dissents but there is almost always a way to stay true to your own ideology while maintaining good relations with your colleagues.

Ginsburg has said that one of the enduring traditions of the Court has been to start every day with handshakes. All nine justices shake each other’s hands to show, in Ginsburg’s words that “even though you circulated that nasty dissent yesterday, we’re in this together and we better get along with each other.” This tradition sets a powerful example to anybody in an adversarial workplace: if the SCOTUS justices can find a way to get along then everybody should be able to make the effort.

How do your colleagues handle fundamental differences of opinion?

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