The Gossip Girl-like dynamics of the Supreme Court

There is perhaps no branch of government that fosters secrecy or harbors sneaky resentment to a degree even Gossip Girl herself would be astonished with, than the Supreme Court.

The highest court in the land has purposefully cast an opaque fog over its internal workings for decades, but in this past term, it was clear from their opinions that there was drama behind the scenes.

At the center of that is Justice Amy Coney Barrett.

If the court itself is Gossip Girl then Barrett is season two Jenny Humphrey. That’s to say, she’s breaking ranks with her OG squad and finding her own voice – although with less goth eyeliner.

Barrett, the youngest judge on the court, was hastily appointed by Trump in 2020 to replace Ruth Bader Ginsberg. Her purpose was largely considered to be assisting conservatives in overturning Roe v. Wade – which she did, forever changing the landscape of reproductive rights.

And for the first two years of her role, Barrett was largely unremarkable in her decisions. She mostly sided with her conservative colleagues, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.

But this term Barrett seemed to get frustrated by the men she’s expected to side with.

Nobody knows what goes on behind the heavy red curtains in the Supreme Court building once justices are alone, but we can get a sense of it from their very own words.

If you look behind the legalese, the opinions written by the justices reveal the gossip like a juicy blog — sometimes directly stated, other times written between the lines, xoxo.

Take Barrett’s concurring opinion in Trump v. Anderson – the case about whether or not Trump could remain on the ballot under the 14th Amendment.

Ultimately Barrett agreed with her colleagues, Trump should remain on the ballot. But she seemed deeply frustrated with the reasoning behind the decision, believing the conservative majority went too far in their ruling. At a time when the court has become more political than ever, Barrett seems to fight back against that.

“In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election,” Barrett wrote.

“Particularly in this circumstance, writings on the Court should turn the national temperature down, not up,” Barrett added.

Similarly in the other blockbuster Trump case, Trump v. United States, in which the court awarded the former president immunity from criminal prosecution for some official acts, Barrett agreed presidents should enjoy some immunity but distinctly dissented from her conservative colleague’s sweeping rule.

“The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” Barrett wrote. 

This term, the quiet justice often forgotten outside of her role in overturning Roe, has become the conservative justice most likely to side with the liberal wing of the court.

Barrett sided with Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson in two crucial cases this term – one that determined if some January 6 defendants should have their charges dropped and another that limited the Biden administration’s air quality regulations.

Not only did Barrett side with them but she wrote the dissents (in SCOTUS terms, this is like flipping the bird to her conservative colleagues).

In Ohio v. EPA, the case about the Clean Air Act, Barrett accused her conservative colleagues of clutching at straws to issue a ruling that kept the program on pause while lower courts determined its validity.

“The Court that goes out of its way to develop a failure-to-explain theory largely absent from applicants’ briefs. One can search diligently in the hundreds of pages of applicants’ opening briefs for the Court’s theory…. and be left wondering where the Court found it,” she wrote.

In Fischer v. United States – the January 6 rioters case – Barrett directly challenged Chief Justice John Roberts for comparing those who stormed the Capitol to a person eating a sandwich at the zoo in front of a hungry gorilla.

“To my knowledge, we have never applied either of these canons to a statute resembling §1512(c). Rather than identify such a case, the Court invents examples of a sign at the zoo and a football league rule.”

This is Barrett’s “Dad, I want to go to fashion school” moment.

Barrett’s independence was one of the most recognizable shifts this Supreme Court term. But there were other less noticeable differences that may point to larger drama on the court.

Alito, a senior conservative justice appointed by George W. Bush in 2006, authored the fewest number of opinions this term – only four.

For the last 10 years, Alito has authored at least six per term. Granted, the court has taken up slightly more cases in the past but it raised some eyebrows.

A CNN investigation and analysis suggested that there was tangible tension that looked eerily similar to the Roy siblings on Succession.

In NetChoice LLC v. Paxton – a case about a Texas law that prohibited social media companies from removing content based on viewpoint – Alito was supposedly slated to write the opinion for the unanimous majority but apparently went so far in his reasoning that other justices refused to back him.

In his concurring opinion he wrote, bitterly, that while he agreed with the final decision, "everything else in the opinion of the Court is nonbinding dicta” – meaning that the court’s majority opinion was purely a suggestion, in a clear attempt from Alito to undermine its validity.

Other bits of drama to watch out for: Sotomayor growing increasingly exasperated with losing, Thomas finding himself in trouble for failing to disclose financial ties, and Roberts going slightly rogue.

The next term, which begins later this month, is expected to be filled with more spicy opinions as the court takes up cases regarding gender-affirming care for minors, Biden administration climate policies and gun laws.

As Gossip Girl herself might say, some might call this a fustercluck. But in Washington DC, we call it Sunday afternoon.