What the Supreme Court justices won't say speaks volumes.

The law, lawyers, and the court.
Jan. 27 2007 7:22 AM

Talk of the Gown

What the Supreme Court justices won't say speaks volumes.

It's no secret that the justices of the U.S. Supreme Court have served some hard time in the makeup chair this year. In a welcome development for openness and transparency, many of the justices have done their share of close-ups this term. In recent months, Justice John Paul Stevens and Chief Justice John Roberts gave prime-time interviews to ABC's Jan Crawford Greenburg; Justice Ruth Bader Ginsburg chatted with CBS' Mike Wallace in chambers; and Justice Stephen Breyer has logged almost as much time on camera as Lindsay Lohan—including a sit-down with Charlie Rose and a gig on Fox News Sunday. Roberts is participating in a four-hour documentary to be aired on PBS starting next week.

Even some of the justices still unwilling to talk to the cameras have been more amenable to speaking on the record. Justices Antonin Scalia and Stephen Breyer, for instance, engaged in a wide-ranging public debate last December that is available for download on the Web. And ABC's Greenburg was able to secure interviews with nine justices for her new book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court and America's Future. Nine justices. That's a lot more than Bob Woodward got for The Brethren.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

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What the justices have discussed in these interviews has ranged from judicial philosophy to how much the chief justice's young son likes Spider-Man. And that's opened the door to a far more robust and nuanced national conversation about constitutional law and the proper role of the judiciary. Whether it's the new chief justice extolling the virtues of unanimity and minimalism, or Stephen Breyer selling his constitutional theory of "active liberty," the court has finally taken its case to the airwaves, and that is unequivocally good for an America that—for better or worse—has pretty much taken up permanent residence there.

But a funny thing is happening on the way to the soundstage. Some justices are refusing to discuss certain areas of the law in these extrajudicial discussions. And that raises interesting questions about which justices avoid which topics and why. Does the selective chill reflect fissures on the court, in the law, or both?

For example, Ginsburg talked openly with Mike Wallace in October until he came to the subject of abortion. Out came the ice water: "Stop!" she said. "We're not going to talk about abortion." Ginsburg also expressly refused to discuss questions about the separation of church and state and Bush v. Gore, insisting "questions are going to come before this court on those turbulent issues."

So too, when Chris Wallace asked Breyer about abortion in December, the justice stopped him, explaining, "I decide abortion cases when they come up. But I know perfectly well that anything I say on that subject is enormously volatile." He also felt it improper to "talk about that subject particularly in a public forum that isn't the court." When Wallace interrupted to ask for clarification, Breyer repeated: "No, not any question to do with abortion ..." Full stop there. And Breyer similarly refused to touch the subject of abortion at a public debate with Scalia in Washington last December. Interestingly, Scalia had no such qualms.

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