It's the story that everybody says nobody is talking about. Recent comments by former and sitting Supreme Court justices range from incendiary to inscrutable, unvarnished and unpublished to unpublishable, and raise all sorts of questions about the proprieties and boundaries of extrajudicial speech. Who should Supreme Court justices speak to, and is it a matter of public concern what they say? Are justices saying more controversial things than they used to, or are their speeches more readily snatched up by an omnipresent media? Would it be better for justices to say nothing in public or only tell amusing anecdotes? Can and will what a justice says be held against him in a court of law?
The latest volley of judicial Big Talking started last February, when Ruth Bader Ginsburg gave a then-unnoticed speech in South Africa in which she suggested that Republican legislative efforts to prohibit justices from citing foreign sources fueled "the lunatic fringe," connecting them to death threats against herself and Sandra Day O'Connor. The story wasn't publicized until March, when the speech popped up on the Supreme Court's Web site. Antonin Scalia then hied off to Switzerland in March, where he offered some controversial thoughts on the rights of enemy combatants picked up on the battlefield, suggesting that their demands for a full jury trial were "crazy," and that his son risked his life on those same battlefields. A case probing this same issue was pending before the high court at the time. Newsweek later picked up the story and videotape, and calls for his recusal followed immediately thereafter.
Then it was O'Connor's turn to deliver a barnstormer at Georgetown Law Center in which she assailed, without naming, Republican leaders Tom DeLay and John Cornyn, for court-bashing rhetoric last year. She warned that such attacks take the nation a step closer to "dictatorship." NPR reported the story although no transcript was made available. Scalia got into it with a reporter two weeks ago outside a Boston church. Gestures were made. Finally, Anthony Kennedy gave a speech in Washington last week, at which he criticized unnamed editorialists for essentially being too lazy to read Supreme Court opinions before writing about them. The Wall Street Journal is angry. If you are looking for first principles, start here: Judges are supposed to speak only through their written decisions. Anything they add is confusing at best, and of some legal consequence at worst. Discussions of future or pending cases may be construed as "promises" or may suggest something less than an "open mind." Of course, first principles are silly since judges and justices give speeches all the time, as is their constitutional right. So, let's move on to the legal rules.
What legal rules? Well, there are certainly some completely unenforceable, self-policing judicial rules, most notably, the U.S. Code (Title 28, Section 455), which lays out the basis for judicial recusal and suggests that judges should step back, "in any case" in which their "impartiality might reasonably be questioned." That offers very little guidance about what the justices may say on specific legal issues, and since each justice is left to determine for himself or herself whether they have crossed that line, and there is no corresponding duty to justify that decision to the public, this is really only a "rule" in the same way that it's a "rule" in my house that whoever finishes the roll of toilet paper replaces it.
Add to the ambiguity of the legal standards for what kinds of speech are appropriate, the real-world ambiguity about how the justices speak. The problem here is twofold: whom they are talking to, and how they say it.
Because the Supreme Court justices want to be a part of the national conversation—and especially where that conversation pertains to Supreme Court justices—they often launch these little speech bombs into the ether. Since there is no Supreme Court blog, no cable television show about them, and no way to insert "Shut up, Tom DeLay" into a written opinion, the justices are left with the most roundabout modes of communicating: O'Connor talks to John Cornyn through the students at Georgetown, with an assist by Nina Totenberg. Scalia talks to Stephen Breyer and John Paul Stevens through the students at the University of Freiburg in Switzerland. And Justice Kennedy talks to editorialists through international lawyers.
This is not the smartest way to conduct a national dialogue about policy. It's how parents fight in front of the children. ("Tell your father the litter box is full. Again.")
Then there is the problem of forum: Some justices still seem to think that if they say something very far away, or to an audience without visible tape recorders, it won't be made public. Consider, for instance, that some justices—many of whom utterly reject the value of foreign law—reserve their most substantive legal speeches for foreign audiences. Why is Justice Ginsburg yelling at congressional Republicans from South Africa when she can just open the window of her chambers and shout across to the Capitol? Whether it's a good thing or a bad thing, the combination of the Internet, bloggers, and bored law students means that everything a justice now says—whether it's at a private prayer service in Mississippi or a Hadassah meeting in Reykjavik—is public. And what Supreme Court justices say, particularly when they are taking brickbats to unnamed others, is news, whether or not you destroy every tape recorder in the room. In fact, giving speeches without publishing transcripts or permitting recording devices is now doubly fraught, in that we are left to trust the reports of the listeners alone. As commentator Jonathan Raban recently suggested, "If O'Connor believes what she is reported to have said [about dictatorship] surely she owes it to the world to make public the prepared text of her remarks."
If it's true that there can no longer be such a thing as casual, off-the-record extrajudicial speech, the question is whether justices should just stop talking altogether, under the "sticks and stones" theory of jurisprudence. That may be the theoretical preference, but such judicial stoicism is precisely what some demagogues take to the bank. As the founder of one silly new judge-bashing group has stated, "We ... get unlimited kicks at the judges' crotches and shins, and the judges must keep a straight face and pretend we don't exist." With escalating physical attacks on judges, it's arguable that the time of sticks and stones is now.
That's why it may be no accident that the justices are most vocal and rhetorically overheated in discussing attacks on the judiciary. They are circling the wagons. Indeed, if there is one theme animating most of the recent comments by justices, it's blowback at efforts to impugn them: O'Connor's comments (and she has made them before) were offered in response to attacks on the court from right-wingers in Congress. Ginsburg decried that same demagoguery and the effect it is having on the American public. Kennedy's comments about editorialists, also made previously, were a reaction to perceived media attacks on judicial logic. Even Antonin Scalia's recent unpleasantness in Boston was a response to a query from a journalist about whether his religious convictions somehow impair his objectivity. The late Chief Justice William H. Rehnquist used his year-end reports on the judiciary to deliver similarly blistering criticisms of court critics.
The problem with these accumulated extrajudicial comments is that they often happen in such liminal political spaces: in foreign lands, or unpublished formats, assailing unnamed adversaries, and through indirect channels. This sort of shadow-dialogue only fosters more resentment and criticism. Justices wishing to take part in the national conversation must stop pretending they aren't really speaking, or that nobody's really listening, or that their words don't have consequences.
Perhaps it's unfair to ask that Supreme Court justices speak openly and directly if we simply plan to call for their recusals whenever they do. But judicial attempts to speak from the shadows are plainly backfiring. If they want to be a part of the conversation, it's time for the justices to step up to the mike and talk.
A version of this article also appears in the Outlook section of the Sunday Washington Post.