Are liberal Supreme Court justices feuding with Neil Gorsuch?


It’s the highest court in the United States — and if the reports are right, it may also be the pettiest.

On Wednesday, Slate’s legal reporter Mark Joseph Stern wrote an article titled “Feud: Elena and Neil.” In it, Stern surfaced rumors suggesting liberal Supreme Court Associate Justice Elena Kagan and conservative Supreme Court Associate Justice Neil Gorsuch might be feuding behind closed doors.

But the palace intrigue doesn’t stop there: According to Stern’s analysis, there’s reason to believe that one of those justices might be leaking that feud to the public.

It all began with an appearance by NPR legal affairs correspondent Nina Totenberg on SCOTUS podcast First Mondays.

Totenberg said she’s heard rumors that Kagan has launched an offensive against Gorsuch, her ideological opponent, in conference.

“My surmise, from what I’m hearing, is that Justice Kagan really has taken [Gorsuch] on in conference,” Totenberg said, according to Slate. “And that it’s a pretty tough battle and it’s going to get tougher.”

In his analysis, Stern notes that two words from Totenberg’s account are particularly striking: “in conference.”

Slate’s legal analyst wrote:

Why is Totenberg’s reporting here so extraordinary? Because it’s astonishing that any reporter would hear details from conference, let alone score some genuinely juicy scuttlebutt. Conference is famously sacrosanct: It’s where the justices gather to cast their votes in the cases of the week, with each explaining his or her reasoning in order of seniority. Nobody else is allowed to attend. If rumors leak about a justice’s behavior in conference — and they basically never do — it is almost certainly a justice who leaked them. And when justices leak — which again, happens very rarely — they do so on purpose. The fact that we know about the ‘battle’ in conference between Gorsuch and Kagan suggests that someone on the court wants us to know.

In other words, according to Stern, it’s not unreasonable to suggest that one of the justices has violated the norms of conference to find a way to let the American people know about the closed-door ideological battle between the justices. In leaking to Totenberg, it’s possible one of the justices has found a way to get news of the alleged feud to the public.

It’s not the first time the public has caught wind of potentially simmering animosity between a liberal justice and Gorsuch: In October, the New Yorker highlighted an icy confrontation between the originalist justice and liberal Justice Ruth Bader Ginsburg during oral arguments for a major case that will likely decide the future of gerrymandering in the United States.

According to writer Jeffrey Toobin, the newest justice hectored his colleagues on the bench about “the arcane matter of the Constitution,” suggesting that the liberal associate justices had strayed too far in their interpretation of our nation’s foundational legal text.

Gorsuch’s grandstanding on SCOTUS overreach in matters of state politics continued:

And where exactly do we get authority to revise state legislative lines? When the Constitution authorizes the federal government to step in on state legislative matters, it’s pretty clear — if you look at the Fifteenth Amendment, you look at the Nineteenth Amendment, the Twenty-sixth Amendment, and even the Fourteenth Amendment, Section 2.

When Ginsburg heard Gorsuch’s originalist pontification, Toobin wrote, she didn’t even need to raise her head in order to cut the justice down to size.

Toobin wrote:

Ruth Bader Ginsburg, who is bent with age, can sometimes look disengaged or even sleepy during arguments, and she had that droopy look today as well. But, in this moment, she heard Gorsuch very clearly, and she didn’t even raise her head before offering a brisk and convincing dismissal. In her still Brooklyn-flecked drawl, she grumbled, ‘Where did ‘one person, one vote’ come from?’ There might have been an audible woo that echoed through the courtroom.

“One person, one vote” was a landmark 1964 ruling that ensured, as SCOTUSblog explained it, “no individual’s vote may be weighted more heavily than any other’s.”

That might be too wonky for anyone who isn’t a legal scholar, but, according to Toobin, it was clear to those watching that Ginsburg’s riposte had hit its mark.

“Ginsburg’s comment seemed to silence Gorsuch for the rest of the arguments,” he wrote.