Later this month, the Supreme Court will rule on President Obama’s health care plan. One side or the other in this politically charged case is bound to be frustrated. But the air of crisis awaiting the court’s decision, the expectation that it will spark a furor, owes less to the case than to an erosion of faith in the court.
This loss of confidence in the institution best-positioned to preserve unity in times of flux is a tragedy with many chapters. It started with the intense politicization of the nominating process, emblemized by the 1987 Robert Bork battle. It fed on the rancor of those who sought to structure the court around one litmus-test issue: abortion.
But the ultimate blame rests with the justices themselves. Protected by lifetime tenure, many have chosen to enter the political fray rather than insulate themselves from it. Their involvement with politically motivated organizations reflects a shocking lack of concern for the court’s image. All other federal judges are bound by the Judicial Conference’s Code of Conduct, which says they can’t engage in political activity and shouldn’t undermine their impartiality. But as a self-administering branch of the government, the nine justices have exempted themselves. They should reverse course, endorse the Code of Conduct, and forgo politics — for their own integrity, and that of the court.
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Next weekend, Justice Ruth Bader Ginsburg will be the featured speaker at the annual conference of the American Constitution Society, a group dedicated to “countering the activist conservative legal movement that has sought to erode our constitutional values.” The conference, whose honorary co-chairs include Nancy Pelosi and Harry Reid, is a networking event for liberal lawyers. It was created a decade ago as a counterweight to the Federalist Society, which was itself dedicated to erasing the “orthodox liberal ideology which advocates a centralized and uniform society,” and has a board of visitors co-chaired by Bork and Orrin Hatch, the longtime Republican member of the Senate Judiciary Committee.
The Federalist Society provides a pulpit for Antonin Scalia, the court’s senior conservative, and justices Clarence Thomas and Samuel Alito, who seek to inspire the network of up-and-coming conservative legal scholars dedicated to, among other things, overturning Roe v. Wade.
Scalia, Thomas, Ginsburg, and Alito have also participated in events sponsored by groups that are even more nakedly partisan, such as Scalia’s meeting in early 2011 with Michele Bachmann’s House Tea Party caucus. But when Supreme Court justices become the leading figures — the keynoters, the rallying points — of national groups dedicated to very specific agendas, it’s an affront to the court. The two legal societies have clear views on health care, voting rights, campaign finance, and many other issues. How can litigants believe they’re getting a fair shake before justices who, by their very presence, support those groups?
It may seem that maintaining the appearance of impartiality is just that — a show of appearances. Many justices harbor strong views, the thinking goes, so why not let them be open about it? But the urge to go public with their ideas, to rub elbows and curry favor with the activists, is corrupting in itself. It puts the justices’ own needs and ambitions at the center of the docket, where the litigants should be.
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In 2000, the court went out on a limb in Bush v. Gore, claiming, by a 5-4 margin, that there wasn’t enough time to restructure the Florida recount to meet equal-protection concerns, and that therefore the initial count would have to suffice. The five justices backing George W. Bush were all appointees of Republican presidents. The four in dissent included the only two appointees of a Democratic president. One of them, Stephen Breyer, wrote presciently: “Above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years . . . It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself.”
Past courts had made decisions with an eye toward public confidence. In the early 1950s, Justice Felix Frankfurter worked tirelessly behind the scenes to secure a unanimous vote in the desegregation case of Brown v. Board of Education. He believed the public would accept the decision more readily if the court acted in unison, and he and his fellow justices compromised on the language of the opinion to achieve a more broadly acceptable result.
But the desire to project an image of impartial justice had begun to wane before Bush v. Gore, and all but disappeared afterwards. Scalia went hunting with Vice President Dick Cheney while the court considered whether to force Cheney to give up records from his energy task force. Ginsburg lent her name to a lectureship by the NOW Legal Defense and Education Fund, a leading abortion-rights group. Alito attended multiple fundraisers for a conservative magazine and right-wing think tanks. Scalia and Thomas attended a conservative brain-storming retreat sponsored by the Koch brothers, key funders of the Tea Party. Thomas’s wife, Virginia, started a group that agitated against Obama’s health overhaul, among other causes. When liberals called for Thomas to recuse himself from the health care case, the justice refused either to step aside or distance himself from his wife’s work. He and Virginia, he said, “believe in the same things.”
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Such disregard for appearance, and contempt for critics, reflects an arrogant sense of infallibility. Not all justices have been so brazen. Others, including Chief Justice John Roberts, have shown a deeper sense of propriety. But they need to do more to constrain their brethren.
Such disregard for appearance, and contempt for critics, reflects an arrogant sense of infallibility.
Roberts, in his annual report, explained why, as a separate branch, the Supreme Court is not bound by the Judicial Conference, which was convened by an act of Congress; since lower federal courts aren’t mentioned in the Constitution, they must follow Congress’s dictates. Not the Supreme Court.
But the Supreme Court wouldn’t be putting itself under the thumb of Congress by voluntarily following the same common-sense rules as other judges. The Code has five canons, one of which is to “refrain from political activity,” including events “sponsored by a political organization or candidate.” The canon goes beyond barring judges from campaign events, adding that “a judge should not engage in any other political activity,” as well.
Roberts said the Supreme Court takes the Code under advisement. It should pay much closer attention if it hopes to retain the confidence of the people.
Tomorrow: How the judicial confirmation process should be conducted to produce a less divisive court.