Lights, cam­era, the law

Law pro­fes­sor Jonathan Tur­ley on why the high court doesn’t need celebrity jus­tices

The Washington Post Sunday - - OUTLOOK - jtur­ley@law.gwu.edu Jonathan Tur­ley is the Shapiro pro­fes­sor of pub­lic in­ter­est law at Ge­orgeWash­ing­ton Law School.

An­tonin Scalia and the rise of the celebrity jus­tice.

Jus­tice An­tonin Scalia is sched­uled to ap­pear be­fore an ea­ger fresh­man class Mon­day to talk about the Con­sti­tu­tion. This is noth­ing new for Scalia, who of­ten speaks at law schools. These stu­dents, how­ever, are a lit­tle dif­fer­ent.

At the in­vi­ta­tion of Rep. Michele Bach­mann(R-Minn.), Scalia will be ad­dress­ing new con­ser­va­tive mem­bers of the House of Rep­re­sen­ta­tives. To them, Scalia is a noth­ing short of a rock star. He per­son­i­fies not only con­ser­va­tive val­ues but a new model for the Supreme Court: the celebrity jus­tice.

Where Scalia has ven­tured with crowd­pleas­ing rhetoric, other jus­tices are fol­low­ing. They rally their bases on the right or the left with speeches, can­did in­ter­views, com­mence­ment ad­dresses and book tours. They ap­pear to be aban­don­ing the prin­ci­ple of strict neu­tral­ity in pub­lic life, long a touch­stone of ser­vice on the high­est court.

The Bach­mann event takes this pos­tur­ing to a new level. Scalia will be di­rectly ad­vis­ing new law­mak­ers who came to Congress on a mis­sion to re­make govern­ment in a more con­ser­va­tive im­age. Many of them made pledges to re­peal health­care re­form, re­strict im­mi­gra­tion and in­ves­ti­gate the pres­i­dent — pledges based on con­sti­tu­tional in­ter­pre­ta­tions that might end up be­fore the court.

At best, Scalia’s ap­pear­ance can be viewed as a pep talk. At worst, it smacks of a po­lit­i­cal al­liance.

Supreme Court jus­tices have long cho­sen fairly clois­tered lives and avoided pub­lic speeches and ap­pear­ances. His­tor­i­cally, most mem­bers of the high­est court — where the pro­ceed­ings are still not tele­vised — were un­rec­og­niz­able to cit­i­zens. In an in­ci­dent that’s a fa­vorite of mine, a tourist fam­ily once asked an el­derly man to take their pic­ture at the court— and found out later that it was Jus­tice By­ron White. Jus­tice John Paul Stevens, who re­tired

last year, may have been the last of the breed of judges truly com­mit­ted to lim­it­ing pub­lic ap­pear­ances. A cou­ple of years ago, Stevens and I spoke to a ju­di­cial con­fer­ence in­Mil­wau­kee and flew on the same plane. While we chat­ted at the gate, a lawyer came up and in­tro­duced him­self tome. He didn’t rec­og­nize Stevens, and when I in­tro­duced him to the jus­tice, the lawyer turned scar­let and made a fast re­treat. Stevens never wanted to be a le­gal idol. He wanted to speak only through his opin­ions.

But as soon as Scalia was ap­pointed to the Supreme Court by Pres­i­dent Ron­ald Rea­gan, it was clear that he would be a dif­fer­ent type of jus­tice. He was in­stantly rec­og­nized as the in­tel­lec­tual leader of the right on the court at a time of in­tense ide­o­log­i­cal di­vi­sions. He also chafed at the court’s monas­tic en­vi­ron­ment. Charm­ing and iras­ci­ble, Scalia is a much val­ued speaker and loves to in­ter­act with lawyers and law stu­dents. He of­ten ap­pears at con­ser­va­tive events and thrills crowds by at­tack­ing lib­eral doc­trines. Scalia gave a re­veal­ing in­ter­view, pub­lished in this month’s Cal­i­for­nia Lawyer mag­a­zine, speak­ing against claims that the 14th Amend­ment pro­tects women and gays from dis­crim­i­na­tion. While that was not a new po­si­tion for Scalia, he again trig­gered a pub­lic de­bate on is­sues that are likely to come be­fore the court this term.

Scalia is not the first jus­tice to cul­ti­vate a con­stituency. Jus­tice Wil­liam Dou­glas, ap­pointed by Franklin D. Roo­sevelt in 1939, pub­licly em­braced en­vi­ron­men­tal causes, in­clud­ing the preser­va­tion of the C&O Canal. More re­cently, Jus­tice San­dra Day O’Con­nor was crit­i­cized for con­demn­ing the death penalty. In a 2001 speech in Min­nesota, O’Con­nor said that she ques­tioned whether the death penalty could be “fairly ad­min­is­tered in this coun­try.” She told her au­di­ence, “Min­nesota doesn’t have [the death penalty], and you must breathe a big sigh of re­lief ev­ery­day.”

Still, Scalia is the first real celebrity jus­tice. When he ap­pears at con­ser­va­tive events, sup­port­ers line up to greet a man who seems more or­a­cle than or­a­tor. They are drawn not just to his orig­i­nal­ist views but to the sense that he is a purist on a court of rel­a­tivists. And his fans are of­ten re­warded with a zinger from the jus­tice that would set the hair of ev­ery lib­eral on fire. Forex­am­ple, in a 2006 talk to stu­dents in Switzer­land, Scalia de­nounced the idea of giv­ing Guan­tanamo de­tainees rights in fed­eral courts, with a dis­turbingly per­sonal take on the mat­ter: “Give me a break. . . . If he was cap­tured by my army on a bat­tle­field, [Guan­tanamo] is where he be­longs. I had a son on that bat­tle­field, and they were shoot­ing atmy son, and I’m not about to give this man who was cap­tured in a war a full jury trial. I mean, it’s crazy.”

Other jus­tices, par­tic­u­larly those on the right, ap­pear to be fol­low­ing Scalia’s lead and pre­sent­ing their pol­i­tics pub­licly. This in­cludes Jus­tice Clarence Thomas, who is known for his ut­ter si­lence dur­ing oral ar­gu­ments. Out­side the court, though, he has de­nounced our so­ci­ety’s “fo­cus on our rights” and the “pro­lif­er­a­tion of rights” pro­tect­ing cit­i­zens. Andthe whole world saw Jus­tice Sa­muel Al­ito shake his head and mouth “not true” as the pres­i­dent crit­i­cized the re­cent Cit­i­zens United de­ci­sion on cam­paign fi­nance at the State of the Union ad­dress last year.

Jus­tices who flaunt their pol­i­tics pub­licly do more than just lec­ture — they also can raise cash for ide­o­log­i­cal al­lies. Scalia and Thomas have re­port­edly at­tended events funded by con­ser­va­tive bil­lion­aires David and Charles Koch. Last week, Thomas ad­mit­ted through a spokesman that he “dropped by” a Koch ses­sion in 2008. Both jus­tices were even fea­tured in Koch pro­mo­tional ma­te­rial with Glenn Beck and Rush Lim­baugh.

Al­ito has spo­ken at a fundraiser for the Intercollegiate Stud­ies In­sti­tute, a con­ser­va­tive ed­u­ca­tional group. He reg­u­larly at­tends con­ser­va­tive fundrais­ers, in­clud­ing a re­cent event for the Amer­i­can Spec­ta­tor mag­a­zine; he head­lined that an­nual din­ner in 2008. When con­fronted about his pres­ence at the clearly par­ti­san event, Al­ito dis­missed con­cerns, say­ing, “It’s not im­por­tant.”

But it is im­por­tant. Per­haps not to Al­ito or Scalia, but to the court. If jus­tices come to per­son­ify po­lit­i­cal move­ments, the law ap­pears to be merely an ex­ten­sion of the per­son­al­i­ties — and the pol­i­tics — on the bench.

Some ju­di­cial com­men­tary and ap­pear­ances raise se­ri­ous eth­i­cal ques­tions. Canon 4 of the ju­di­cial Code of Con­duct states that a fed­eral judge should not take part in any ac­tiv­i­ties that “re­flect ad­versely on the judge’s im­par­tial­ity.” This canon specif­i­cally warns that “a judge should not per­son­ally par­tic­i­pate in fund-rais­ing ac­tiv­i­ties, so­licit funds for any or­ga­ni­za­tion, or use or per­mit the use of the pres­tige of ju­di­cial of­fice for that pur­pose.”

But this code ap­plies only to lower-court judges; the mem­bers of the high­est court in the land are not, in fact, sub­ject to any code of con­duct. The only di­rect lim­i­ta­tion is the fed­eral law that re­quires a judge or a jus­tice to “dis­qual­ify him­self in any pro­ceed­ing in which his im­par­tial­ity might rea­son­ably be ques­tioned.” This law, how­ever, lacks a process for mak­ing a com­plaint and has never been en­forced against a jus­tice. Each jus­tice is left to be the judge of his or her own al­leged mis­con­duct.

This is not a prob­lem only for the more con­ser­va­tive jus­tices. While Jus­tices John Roberts, Scalia, Thomas and Al­ito have all spo­ken to or been hon­ored by the con­ser­va­tive Fed­er­al­ist So­ci­ety, Jus­tice Ruth Bader Gins­burg has head­lined for the lib­eral Amer­i­can Con­sti­tu­tion So­ci­ety, and Jus­tice Stephen Breyer ap­pears fre­quently be­fore out­side groups. In one speech at a for­eign con­fer­ence, Gins­burg as­sailed con­ser­va­tive mem­bers of Congress for state­ments that she said “fu­eled” an “ir­ra­tional fringe” that threat­ened her life.

Gins­burg’s re­marks high­light an irony with celebrity jus­tices. Dur­ing her con­fir­ma­tion hear­ings in 1993, she re­fused to an­swer ques­tions about is­sues that might later come be­fore the court. Thus the “Gins­burg rule” was born: As­pir­ing jus­tices, at very cau­tious con­fir­ma­tion hear­ings, avoid en­gag­ing on the sub­stance of their le­gal opin­ions. Yet, af­ter con­fir­ma­tion, jus­tices are in­creas­ingly en­ter­ing into pub­lic de­bates over the law.

Mon­day’s Bach­mann-con­vened sum­mit fea­tur­ing Scalia mag­ni­fies this prob­lem. The ef­fort to ed­u­cate new law­mak­ers about the Con­sti­tu­tion is com­mend­able. (I have met sev­eral times with mem­bers of Congress, in­clud­ing Bach­mann, for lunches to dis­cuss con­sti­tu­tional prin­ci­ples.) How­ever, if Scalia ed­u­cates new mem­bers, that un­der­mines both the court and Congress. The prin­ci­ple of ju­di­cial neu­tral­ity should not be com­pro­mised for a le­gal sem­i­nar.

Jus­tice Robert Jack­son once ad­vised that jus­tices “are not fi­nal be­cause we are in­fal­li­ble, we are in­fal­li­ble be­cause we are fi­nal.” That wink­ing ob­ser­va­tion is cer­tainly true — jus­tices clearly can make mis­takes. Few can re­sist pub­lic ado­ra­tion. How­ever, as they yield to that temp­ta­tion, cit­i­zens may find it hard to ac­cept the fi­nal­ity of their de­ci­sions. If jus­tices merely carry the torch for their po­lit­i­cal al­lies, law be­comes lit­tle more than a part of pol­i­tics.

Jus­tices do not have a“ base.” They must ask more of them­selves by of­fer­ing less to their re­spec­tive con­stituen­cies.

ANDY FRIED­MAN FOR THE WASHINGTON POST

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