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Divisions at the U.S. Supreme Court are playing out in differences among the justices

AILSA CHANG, HOST:

All right. To the U.S. Supreme Court now, which has not been this divided in decades. There is disagreement about masking, about social issues and about the Constitution itself.

NPR legal affairs correspondent Nina Totenberg broke some news this morning on just how deep these divisions are. She joins us now. Hey, Nina.

NINA TOTENBERG, BYLINE: Hi there.

CHANG: So your reporting centered on the justices' most recent return to the court after the omicron surge during the holidays. Can you just say, like, what struck you the most about this return?

TOTENBERG: Well, it was a bit jarring. All the justices were now wearing masks, all except Justice Neil Gorsuch. What's more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone that was set up in her chambers. Now, Sotomayor has diabetes, and that puts her at high risk for serious illness or even death from COVID-19. She's been the only justice to wear a mask on the bench since last fall, when the justices resumed in-person arguments for the first time since the onset of the pandemic, and cases were pretty low.

But now with the omicron surge, the situation had changed. And according to court sources, Sotomayor didn't feel safe in close proximity to people who were unmasked. So Chief Justice John Roberts, understanding that, in some form or other suggested that the other justices mask up. And they all did, except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal also meant that Sotomayor did not attend the justices' weekly conference in person, joining instead by telephone. And she will do it again this week.

CHANG: I mean, you have covered the court for many years, Nina. How unusual is it to see these kinds of fissures among the justices?

TOTENBERG: It's unusual. You don't have to be a keen observer these days to see that something out of the ordinary is happening. Now, maybe some of it is COVID making people a little crazy. But more likely, it's the fact that there is a very aggressive, conservative supermajority, including three Trump appointees, and a court that could well end up being more conservative than any court since the 1930s. So it's not surprising that the court's three liberal justices would be upset, but the degree of that upset telegraphs something even more.

At oral argument, Justice Elena Kagan, for instance, one of the court's best questioners, sometimes just shuts down rather than alienate her colleagues. Still, her anger is often palpable, the color literally draining from her face. And Justice Stephen Breyer on occasion just holds his head in both hands.

Justice Sotomayor takes her shots quite regularly. In November, when the court at oral argument seemed prepared to overturn Roe v. Wade, she first noted that, for 50 years, 15 justices voted to reaffirm Roe, and just four had dissented. And then she asked this pointed question - will this institution survive the stench of reversing Roe and the perception that the court's decisions are now just political acts?

CHANG: Wow. But this tension that you're describing - it's not just coming from the liberal justices, right? Like, what are you noticing about the dynamics among the conservatives?

TOTENBERG: There isn't a lot of love lost among them, either. They often agree on the outcome of a case but not the legal reasoning. There's a lot of competition to be the court's intellectual leader and less competition to be a consensus builder. Then, too, there's the fact that for decades the court has built public support by siding with the left on some issues and siding with the right on others. But now the conservative supermajority is on the verge of ending that game and swinging for the fences on issues like abortion, guns, religion, just about everything.

CHANG: Well, how does all of this compare to divisions that we've seen in the past on the Supreme Court?

TOTENBERG: Well, the gold standard for bad behavior - if you can call that the gold standard - was the court of the 1940s, where the justices detested each other so much they were known as nine scorpions in a bottle.

CHANG: Yeah.

TOTENBERG: There's even a book about it called "Scorpions," written by Harvard law professor Noah Feldman, and he gave me a couple of examples of how bad relations on the court were back then. So Justice Felix Frankfurter called Justice William O. Douglas, quote, "one of the completely evil men I've ever met."

CHANG: Oh, my.

TOTENBERG: And Douglas referred to Austrian-born Frankfurter, who was Jewish, as der Fuhrer.

CHANG: Wow.

TOTENBERG: And that was during World War II.

CHANG: That is NPR's Nina Totenberg. Thank you, Nina.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.