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. Follow her on Twitter.

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.

At first, this just looks like a variation on the old confirmation two-step. That's the dance that happens at judicial confirmation hearings wherein a prospective justice refuses to answer any questions about cases or subjects that "may come before the courts." (And, yes, the court heard an abortion case this term.) But that's not really the calculus the justices are using in their increasingly meaty public speeches: At that same debate in December, Breyer spoke about Brown v. Board of Education, even as the high court was hearing two cases that raised school-integration issues that very week. He discussed—briefly—the presidential-powers cases in his interview with Wallace. Betcha that issue will come before the court again soon. And in her interview with Wallace, Ginsburg spoke passionately about the court's decision in a major case involving the presidential authority to create military tribunals, concluding, "In this country, we have no royalty, we have no king who has absolute authority."

Justice Stevens recently discussed the flag-burning case. And this week Scalia told an audience at Iona College in New York that Florida's handling of the Florida recount in Bush v. Gore was a violation of the Constitution's guarantee of equal protection under the law. "Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," he said. Scalia let the crowd know that the case is one only for the history books: "It's water over the deck—get over it," he said. Given that Bush v. Gore explicitly claims to hold no precedential value in future cases, perhaps he's right; still, such voting cases will doubtless come before the court again in the future.

So, how do we account for the justices' sudden silences and pregnant pauses? Surely, it's a question of personality in part. Roberts appears unwilling to discuss cases or doctrine off the bench, Breyer is inclined to discuss them, but mostly in the abstract, and Scalia is inclined to discuss pretty much anything quite openly.

But there's something else at work here—something to do with what Breyer calls the "volatile" cases and Ginsburg calls the "turbulent" ones. For both these justices abortion clearly falls into that category. And in general, they seem to avoid talking about the explosive moral issues that tend to divide the court just as they divide the country—gay rights, race-based decision making, abortion, religion. These are the fronts on which the court's liberals often strive to use constitutional doctrine to protect minority rights. And while there is certainly a sound constitutional basis for their positions, it's been increasingly tricky for the court's liberals to explain them in a sound bite. "Active liberty," as it turns out, requires a whole hour with Charlie Rose to unpack.

The one unifying theme in most of the judicial speeches this past year has been this one: The power belongs to the people. Whether it's Breyer urging citizens to engage in government or Scalia insisting that it's the job of the people, not the court, to modify the Constitution, the universal message of the justices is not to fear the court, but rather to become more involved in the legislative process. But that's only half the story, and the justices know it. The really tough cases are, invariably, the hardest to explain. As Justice Scalia continues to prove, the taut lines of his theory of "originalism" tend to be an easier sell than the blurriness of a "living Constitution." Which may be why some of the justices sometimes talk the loudest when they say nothing at all.

A version of this piece also appeared in the Washington Post Outlook section.