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 ofparticipating 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.
