@newspaperarticle {67681,
	title = {Sometimes, Justice Can Play Politics},
	year = {2011},
	month = {Feb 12, 2011},
	publisher = {New York Times},
	abstract = {
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{\textquoteright} worth 
of disclosure reports to include details of his wife{\textquoteright}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{\textquoteright}s right, the chief justice and the 
secretary of state were the same person {\textemdash} an arrangement permitted by 
the Constitution, which only prohibits members of Congress from holding 
other offices. Marshall{\textquoteright}s most famous decision {\textemdash} Marbury v. Madison,
 which established the principle of judicial review {\textemdash} arose from 
Marshall{\textquoteright}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{\textquoteright}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 Guant{\'a}namo 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{\textquoteright}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{\textquoteright}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{\textquoteright} growing 
circumspection by the early 1970s was that the Supreme Court was taking 
its most active role ever in running the nation{\textquoteright}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{\textquoteright}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{\textquoteright}s mistaken practical judgment opened the door to President 
Bill Clinton{\textquoteright}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{\textquoteright} minimal extrajudicial activities come in for 
public condemnation {\textemdash} 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{\textquoteright}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{\textquoteright}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{\textquoteright}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{\textquoteright} 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 Guant{\'a}namo.        
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 {\textemdash} 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.        \&nbsp;},
	url = {http://www.nytimes.com/2011/02/13/opinion/13feldman.html?pagewanted=1},
	author = {Feldman, Noah}
}
