Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit, during the Federalist Society's annual lawyers convention on Nov. 13, 2009. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL

In his opening statement before the Senate Judiciary Committee, U.S. Supreme Court nominee Brett Kavanaugh said he would “always strive to be a team player on the Team of Nine.”

On Wednesday, he returned to the theme, stressing that as a judge or justice he does not make decisions by himself. “You work with each other,” he said.

But the history of the Supreme Court, as well as its current divisions, may make the “team of nine” goal something of a pipe dream. It was famed Justice Oliver Wendell Holmes Jr., after all, who described the high court as “nine scorpions in a bottle.”

Harvard Law School professor Noah Feldman, author of a 2010 book about the court called “Scorpions,” said Wednesday that through history “the 'team' has only ever existed for fleeting moments. But Kavanaugh—like [Elena] Kagan—would aspire to produce collegiality in the face of pervasive disagreement. I am not sure it would work, and I am not sure it is a good idea. But some personalities really go for that.”

Even though the modern-day court prides itself on the number of unanimous opinions each term, most commentators would agree that the left-right divisions, especially on hot-button issues, are getting more and more entrenched. And that may not be a surprise.

Justices invariably embrace collegiality, but working in unison as a team is not really in their DNA. Justices since Holmes have likened the court, not to scorpions, but nine separate law offices.

Justice Samuel Alito Jr. Credit: Diego M. Radzinschi / ALM

One example: In 2007, early in his tenure, Justice Samuel Alito Jr. told this reporter the goal of unanimity voiced by Chief Justice John Roberts Jr. was a good one, but not if it means endorsing a view he doesn't agree with.

“I think of the analogy of someone coming to your door and asking you to sign a petition,” Alito said in an interview. “You say no, you don't agree with it, and the person at your door says, 'sign it anyway.'” Alito would shut the door on other justices as quickly as he would on the petition circulator.

The “fleeting moments” of team play, Feldman said, included unanimous decisions such as Brown v. Board of Education and United States v. Nixon, as well as Cooper v. Aaron, a per curiam decision without dissents.

During his hearing Tuesday and Wednesday, Kavanaugh also repeatedly mentioned Brown, the landmark school desegregation ruling of 1954, and the Nixon tapes case of 1974, as examples of team play.

But Stanford Law School professor Bernadette Meyler said such unanimity is rare.

“The court has generally gone through waves of greater and lesser unanimity,” she said Wednesday. “I find it particularly ironic that Kavanaugh is emphasizing being a team player given his fairly vigorous dissents on the D.C. Circuit.”

Gerard Magliocca, professor at Indiana University Robert H. McKinney School of Law, was also skeptical. “I suppose Chief Justice Taft had some success in getting a high rate of unanimity,” he said on Wednesday. “And the Marshall court was definitely a team, albeit not a team of 9. I mean, was [Kavanaugh] part of a team on the D.C. Circuit? I doubt anyone would find that metaphor convincing.”

And another Supreme Court expert, Lisa Tucker, a professor at Drexel University Thomas R. Kline School of Law, questions whether such harmony is even a good thing. “Has there ever been a team of nine in terms of consistent judicial philosophy? I don't think so, and I don't think it's desirable. The court is at its very best when justices subscribing to different judicial philosophies and employing different analytical approaches discuss cases as a group and inform each others' opinions.”

 

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