What is it about those robes? They are only flimsy bits of wools,
enlivened in a few cases by some very European lace at the collar. Yet
the moment our Supreme Court justices put them on, a segment of the
concerned public imagines that they have become priests consecrated to
the sacred order of the Constitution.
Recently, Justice Antonin Scalia has been criticized for meeting with a
group of (gulp) conservative members of Congress and accused of participating in an event
organized by the conservative billionaire Charles Koch. Justice
Clarence Thomas has been excoriated because his wife, Virginia, last
year took a leading role in organizing Liberty Central, a Tea Party
offshoot that received anonymous, First Amendment-protected donations
(she has since stepped down). He also belatedly amended 13 years’ worth
of disclosure reports to include details of his wife’s employment.
Justices are required to disclose their income sources and those of
their spouses. But the core of the criticisms against Justices Thomas
and Scalia has nothing to do with judicial ethics. The attack is driven
by the imagined ideal of the cloistered monk-justice, innocent of
worldly vanities, free of political connections and guided only by the
gem-like flame of inward conscience.
It was not ever thus. John Marshall, undoubtedly the greatest chief
justice ever, spent his first month on the court as the secretary of
state of the United States. That’s right, the chief justice and the
secretary of state were the same person — an arrangement permitted by
the Constitution, which only prohibits members of Congress from holding
other offices. Marshall’s most famous decision — Marbury v. Madison,
which established the principle of judicial review — arose from
Marshall’s own failure as secretary of state to deliver the obscure
William Marbury his commission as justice of the peace in the waning
hours of the Adams administration. No one cared.
The political activities of the justices increased over time. Charles
Evans Hughes, who would later become another great chief justice,
resigned from his first stint as associate justice on June 10, 1916, to
run for the presidency on the Republican ticket. Although this
represented a separation from his judicial role, the Republican
convention had begun at the Chicago Coliseum on June 7; Hughes did not
resign until the nomination was in the bag.
In 1948, Americans for Democratic Action tried to draft Justice William
O. Douglas as a Democratic presidential candidate. In their political
literature, they used excerpts from his Supreme Court opinions, which
(his colleagues noted privately) sounded suspiciously like stump
speeches. (In the end, he decided against a run.)
Equally important, in the pre-monastic age, justices often took on
politically charged government responsibilities when the world needed
them. Their experiences in public service not only helped the country,
but informed their subsequent jurisprudence.
Justice Robert Jackson, a valued player in Franklin Delano Roosevelt’s
regular poker game (and a hero to many court observers today), took a
year away from the court to serve as the chief prosecutor at Nuremberg, a
presidential appointment. Later, when the Supreme Court had to decide
whether German detainees convicted by United States war crimes tribunals
were entitled to habeas corpus rights, Jackson did not recuse himself.
Instead, he wrote the opinion in Johnson v. Eisentrager, the case that formed the precedent for the extension of habeas rights to the detainees at Guantánamo Bay.
Justice Owen Roberts was chosen by Roosevelt to head the commission
investigating the attack on Pearl Harbor. What he learned made him one
of only three justices to defy Roosevelt and dissent from the court’s shameful decision to uphold the wartime internment of more than 100,000 Japanese-Americans who had been convicted of no crime at all.
The 1970s saw the beginning of a retreat by the justices from public
engagement with national affairs. Some of this was defensive. In 1969,
Justice Abe Fortas, one of Lyndon Johnson’s closest advisers on Vietnam
even while on the court, had to resign after revelations that he had
been on retainer to a financier under investigation for securities
violations. The next year, Gerald Ford, then the House minority leader,
sought unsuccessfully to impeach Douglas for taking money from a
nonprofit foundation.
Yet, probably the greater reason for the justices’ growing
circumspection by the early 1970s was that the Supreme Court was taking
its most active role ever in running the nation’s affairs: when the
court ruled against Richard Nixon in the Watergate tapes case, it
effectively forced a president from office. Empowered to break a
president (making one had to wait until Bush v. Gore in 2000), the
justices sought to deflect attention from the obvious fact that they
were political.
The disengagement from public life that followed has had real costs.
Isolated justices make isolated decisions. It is difficult to imagine
justices who drank regularly with presidents deciding that a lawsuit
against a sitting executive could go forward while he was in office, or
imagining that the suit would not take up much of the president’s time.
Yet that is precisely what the court did by a 9-to-0 vote in the 1997
case of Clinton v. Jones.
The court’s mistaken practical judgment opened the door to President
Bill Clinton’s testimony about Monica Lewinsky and the resulting
impeachment that preoccupied the government for more than two years as
Osama bin Laden laid his plans.
Today, even the justices’ minimal extrajudicial activities come in for
public condemnation — some of it suspiciously partisan. Does anyone
seriously think Justice Thomas would become more constitutionally
conservative (if that were somehow logically possible) as a result of
his wife’s political activism? It is true that Justice Thomas voted to
protect the anonymity of some corporate contributions in the Citizens United
case. But this vote reflected his long-established principles in favor
of corporate speech. The personal connection was nowhere near close
enough to demand recusal, any more than a justice who values her privacy
should be expected to recuse herself from a Fourth Amendment decision.
After all, Martin Ginsburg, a model of ethical rectitude until his death last year,
was for many years a partner in an important corporate law firm. But
surely no one believes that his career made his wife, Justice Ruth Bader
Ginsburg, more positively inclined toward corporate interests on the
court than she would already be as a member in good standing of
America’s class of legal elites.
Justice Antonin Scalia, for his part, naturally spends time
with like-minded conservatives including Representative Michele
Bachmann and Charles Koch. But when the brilliant, garrulous Justice
Scalia hobnobs with fellow archconservatives, he is not being influenced
any more than is the brilliant, garrulous Justice Stephen Breyer when
he consorts with his numerous friends and former colleagues in the
liberal bastion of Cambridge, Mass.
A FEW years ago, many insisted that Justice Scalia should not sit in
judgment of Vice President Dick Cheney’s claims to enjoy executive
privilege, noting that the two had been on the same duck-hunting trip.
Justice Scalia memorably explained
that the two men had never shared the same blind. He could as easily
have pointed out that before President Harry Truman nationalized the
steel mills, he asked Chief Justice Fred Vinson, a poker buddy and close
friend, if the court would find the action constitutional. (Vinson
incorrectly said yes.)
The upshot is that the justices’ few and meager contacts with the real
world do little harm and perhaps occasionally some good. Justice Anthony
Kennedy makes an annual trip to Salzburg, Austria, to discuss ideas
with European and other global judges and intellectuals. This contact is
often invoked to explain why Justice Kennedy occasionally cites foreign
law (a taboo for Justice Scalia) and why his jurisprudence has been
relatively liberal on such matters as gay rights and Guantánamo.
It is absurd for conservatives to criticize the cosmopolitan forums
where judges from around the world compare notes. And it is absurd for
liberals to criticize the conservative justices for associating with
people who share or reinforce their views. The justices are human — and
the more we let them be human, the better job they will do. Let the
unthinkable be said! If the medieval vestments are making people think
the justices should be monks, then maybe, just maybe, we should to do
away with those robes.