A week after Justice Amy Coney Barrett criticized Justice Sonia Sotomayor for choosing to “intensify dissent with rigor” in a Supreme Court ruling on former President Donald J. Trump’s eligibility to take office, the two women appeared together on Tuesday to discuss civility and civility.
They gave, for the most part, a familiar picture of a collective court whose members know how to disagree without being disagreeable.
“We don’t talk heatedly in our conferences,” Judge Barrett said, referring to the private meetings in which judges discuss cases. “We don’t raise our voices, no matter how hot the case is.”
Justice Sotomayor, who usually gives a sunny account of the relationships between the justices, filed a partial dissent.
“Occasionally someone might come close to something that could be considered harmful,” Justice Sotomayor said. When that happens, he said, a senior colleague will sometimes call for criminal justice, suggesting an apology or other way to make things right.
Similar interactions can occur if an opinion draft is too sharp, he said. “There is a dialogue around it, an attempt to find a different expression,” he said.
Justice Sotomayor added, “Well, all of these things are ways of managing emotions without losing respect for each other and without losing the understanding that each of us is acting in good faith.”
Judge Barrett took on the issue, which may have had more resonance in the wake of her concurrence in the case last week. He took issue with the tone of a joint opinion by Justices Sotomayor, Elena Kagan and Ketanji Brown Jackson, saying they unnecessarily raised the national temperature.
“I’m glad that Justice Sotomayor mentioned that sometimes we need to apologize because we’re human,” Justice Barrett said. “And so sometimes you say something that maybe comes across in a way you didn’t intend.”
Judges have rules to ensure collegiality, he added. They speak in order of seniority in their conferences, no interruptions are allowed, and no one speaks twice until everyone has spoken once.
Judges often dine together, in designated seats. As it happens, Justice Barrett said, he sits across from Justice Sotomayor. The rules of conference discussions, he added, mean “you don’t feel guilty looking at someone across the lunch table.”
Eric Liu, CEO of Citizen University, who interviewed the two judges, said the court’s rules are like “the rules of a really good kindergarten.”
Another analogy, Judge Barrett later said, was that the judges were part of an arranged marriage without the possibility of divorce.
Justice Sotomayor emphasized that it is critical to maintain good relations. “I might not have Amy in this case,” he said of a hypothetical, “but I’ll definitely need her tomorrow for something else.”
Judge Barrett said sometimes an accommodation is possible.
“Our job is to say what we think is the right answer to the best of our ability,” he said. “So none of us can compromise on that and substance, but there’s a lot we can compromise on in the way we write opinions. You know, you have the ability to write an opinion more broadly or more narrowly.”
He added, “We all work very, very hard to like little choices of words, many times, even the smallest choices of words, to serve each other.”
Justice Sotomayor, 69, was appointed by President Barack Obama in 2009. Justice Barrett, 52, was appointed by President Donald J. Trump in 2020.
The discussion took place at a forum on civic education at George Washington University. Civic education was a pet project of Justice Sandra Day O’Connor, who died last year.
Justice Barrett recalled something Justice O’Connor had said: “If you want to know what’s going on in America, you can look at our docket, and you can see some of the battles that are being fought through litigation often mirror the battles that are being fought in society in general”.
Judge Barrett said the court strikes the right balance between transparency and secrecy. “We’re also the most transparent industry,” he said, adding that “you know exactly why we’ve made the decisions we’ve made because we make this transparent.”
“But then we also keep a lot of confidentiality and I think that gives us the room to be able to discuss and talk,” he said.
It is true that the court generally issues lengthy decisions in contested cases. But he often rejects emergency applications on what critics call his shadow evidence without any reasoning at all.
