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Supreme Court Dissension At All Time High As New Session Approaches

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OPINION: This article contains commentary which reflects the author's opinion


The Supreme Court has been a lightning rod of politics in recent times where Republicans and Democrats vie to fill seats to gain an advantage.

And even as several Supreme Court Justices have said that the court is not political, some of what they have said in public has only added to that perception among some, CNN reported.

Justice Samuel A. Alito Jr. defended some of the recent Supreme Court decisions on Thursday at a speech at Notre Dame, The New York Times reported.

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He went off on the perception that some in the media made the “false and inflammatory claim that we nullified Roe v. Wade” after its decision to keep the new, controversial Texas abortion law intact.

“We did no such thing, and we said so expressly in our order,” he said, which was correct as the 5-4 decision said it was based on procedural grounds and not the constitutionality of the new law.

But it was liberal Justice Elena Kagan’s dissent in which she said the unsigned majority order, “illustrates just how far the court’s ‘shadow docket’ decisions may depart from the usual principles of appellate process.”

“Without full briefing or argument, and after less than 72 hours’ thought,” she said. “this court greenlights the operation of Texas’ patently unconstitutional law banning most abortions.”

Justice Alito said the “shadow docket” phrase was misleading.

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“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” he said. “This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.”

He said the decisions made on emergency applications are part of the “emergency docket” and likened it to the decisions made by EMTs.

“You can’t expect the E.M.T.s and the emergency rooms to do the same thing that a team of physicians and nurses will do when they are handling a matter when time is not of the essence in the same way,” the justice said.

And in a speech on Wednesday liberal Justice Sonia Sotomayor said that “There is going to be a lot of disappointment in the law, a huge amount.”

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“Look at me, look at my dissents,” she said.

“You know, I can’t change Texas’ law,” she said on Wednesday, “but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.”

“I am pointing out to that when I shouldn’t because they tell me I shouldn’t,” she said. “But my point is that there are going to be a lot of things you don’t like” and that she believes the people can change.

Justice Sotomayor penned her own dissent of the Supreme Court’s decision on the Texas law.

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“The Court’s order is stunning,” she said. “Presented with an application to join a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of the Justices have opted to bury their heads in the sand.”

“The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law,” she said.

And conservative Justice Amy Coney Barret made a speech at a political event hosted by Senate Minority Leader and Kentucky Sen. Mitch McConnell in September that raised eyebrows.

“My goal today is to convince you that the court is not comprised of a bunch of partisan hacks,” she said.

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“The media, along with hot takes on Twitter, report the results of decisions,” the justice said. “It leaves the reader to judge whether the court was right or wrong based on whether she liked the results of the decision.”

Even longtime conservative Justice Clarence Thomas made similar comments in a speech last month at Notre Dame Law School.

“I think the media makes it sound as though you are just always going right to your personal preferences,” he said. “If they think you’re anti-abortion or something personally, they think that’s the way you’ll always come out.”

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