Yesterday, it was Justice William H. Rehnquist accusing his Supreme Court colleagues of "impropriety," "sophism," "judicial wizardry" and "judicial fiat."
On April 5, it was Justice William J. Brennan Jr. accusing Rehnquist and his allies of "judicial activism," "sheer demagoguery" and "unvarnished hostility" to constitutional claims, and earlier, of a "patent abuse of judicial power."
A few weeks earlier, Justice John Paul Stevens singled out the chief justice for an angry lecture about fairness in processing admissions to the Supreme Court bar.
Their exchanges might seem mild by the rough-and-tumble standards of politics. But by the court's standards they are fighting words and their use is increasing this term, to the point that at least two justices have commented privately about it to friends.
The language generally reflects the court's ideological split. On most issues of social controversy--like yesterday's case involving a Minnesota law regulating charitable solicitations--Justices Brennan, Thurgood Marshall and, increasingly, Harry A. Blackmun, are on what in conventional political terms is called the liberal side, while Rehnquist, Chief Justice Warren E. Burger and Sandra Day O'Connor have been on the other, generally conservative, side. Justices Lewis F. Powell Jr., Byron R. White and John Paul Stevens vote relatively unpredictably.
Brennan, most often the spokesman for his side, will turn 76 on Sunday but is no less fervent about the court's need to take an aggressive role in safeguarding civil liberty than when he joined the court 25 years ago. Rehnquist, most often the voice of the conservative side, is increasingly appointed by Burger to write major opinions, and his own philosophy of "judicial restraint" and "federalism" is dominating more and more of the court's rulings.
That accentuates the extremes.
Some chief justices have tended to appoint the "least convinced" colleague in the majority to write opinions in the hope that this would lessen the differences and make for less sharp divisions. Burger, by so frequently appointing Rehnquist, seems to prefer the "most convinced" ally, and this tends to heighten the conflict and reduce the size of the majority.
Although the vituperation in the court this term may surprise some, it is by no means a new phenomenon. The justices have often been called, at least in the Supreme Court coterie, "nine scorpions in a bottle."