That may be in part because of its docket. The Court’s 2013 term, Garrett Epps noted last year, included particularly political cases, considering the fraught subjects of campaign finance, public-employee unions, and contraceptive coverage under the Affordable Care Act. In all three cases, the voting followed the Court’s partisan makeup: The five Republican appointees voted one way; the four Democratic appointees voted the other. In 2014’s Hobby Lobby decision, notably, it was Sonia Sotomayor who adopted the Scalian mantle, accusing her fellow Justices of acting in bad faith. “Those who are bound by our decisions usually believe they can take us at our word,” she wrote, with a tone of equal parts anger and lament. “Not so today.”
As a result, Epps wrote: “On the Roberts Court, for the first time, the party identity of the justices seems to be the single most important determinant of their votes. The five Republican justices sometimes divide in cases (such as the scope of the federal Treaty Power or the validity of ‘buffer zones’ around abortion clinics) that spawn purely ideological debate. But they are united and relentless in pushing for victory in cases that have a partisan valence.”
This week proved how prescient Epps’ observation was. The Court was meant to be debating the role of the federal government in the twin intimacies of our physical health and our expressions of love. Instead, though, its members talked over each other. They flung insults. They assumed the worst. “The stuff contained in today’s opinion,” Scalia sneered in his reaction to his colleague, “has to diminish this court’s reputation for clear thinking and sober analysis.” You could say the same thing, though, about the stuff contained in that day’s dissent.
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