The old-school view might be summarized like this: Dissenting in the 1962 case of Baker v. Carr, Justice Felix Frankfurter warned his brethren, whom he believed were incorrectly interpreting the Constitution, that the "Court's authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction." Frankfurter's rephrasing of Alexander Hamilton's symbolic description of how the judiciary comes up with the short end of the balance-of-powers stick remains pertinent—so much so that Justice Breyer invokes it regularly. Congress can always back up its decisions through its power over spending, and the president gets to call out the military if folks get out of line. The court, however, has nothing but its words on the page and a faith that the public will heed those words.
Compared with the other branches of government, then, the court has significantly more reason to worry about its prestige. Part of that prestige is bought with illusion: costumes and curtains and a supporting cast that glides about the courtroom on silent feet. But is all this mystery and magic threatened when the justices open their mouths on 60 Minutes, sound off to a group of high-school students, or pen a blistering book review? When Stevens observed in the Seattle schools decision that the composition of the court, and not the Constitution, dictated the holding, he was surely speaking the truth. But was it a truth America could afford to hear? Sometimes the perception of perfectly neutral justice is as important as justice itself.
Conversely, why shouldn't justices be allowed to speak up, especially if they are discussing judicial matters? Surely the justices have a right to speak their minds, up to and including, criticizing the president or berating their colleagues. If the president, the media, and members of Congress are free to opine on the courts, shouldn't justices be allowed to weigh in, too? Depending on your own ideology, there are likely justices whose off-the-bench truths you feel are desperately needed while others should be sent to their quiet places. That fact alone suggests that this is a problem that transcends partisanship.
How can we balance a justice's desire to get things off his chest against the need to protect our collective faith in the institution that cannot exist when that faith is annihilated? And how can we do so without permanently sacrificing the valuable insights we stand to gain by listening to those select few whose vantage point is unparalleled?
To be sure, sitting justices are free to do and say what they wish. They decide for themselves what is and is not appropriate and what need or need not be said. That makes answers to these questions purely academic. But for sitting justices, it seems the balance must tip toward restraint the closer the issue appears to the core work of the court. Moreover, we'd add that judicial editorializing never belongs in the text of an opinion, even in a concurrence or dissent. Supreme Court opinions, after all, are not blog posts. They're official judicial decisions meant to be a sophisticated analysis of legal documents and precedent.
Even outside the courthouse, however, sitting justices should exercise serious caution before going off-script. The more the commentary involves matters that have been, are, or may be before the court, the more suspect it becomes. Caution lights should flash over any remarks that cast doubt on the validity of a decision, a colleague, or the judicial process. Whether it's an interview, book, or speech, these nine jurists represent the court, regardless of where they are and to whom they are speaking. They should also consider that they represent that court whether or not the proceedings are recorded, televised, or just tweeted by someone in the audience. We mere mortals might get to blab about what the court should or shouldn't do, but we have no real power—the justices do. And as Spider-Man continues to remind us, with great power comes great responsibility, and sometimes that responsibility is to hold your Article III tongue, even when you'd rather not. To this we'd also add the rather obvious observation that if the justices want to be seen talking and thinking about important matters of law and policy, there is an easy solution that wouldn't damage the prestige of the court at all: Allow oral argument to be televised.
At the same time, we'd suggest that taking an oath of office should not come with a lifetime gag order. Once the black robe has been permanently sent to the cleaners, we think the balance tips in favor of disclosure. Retired justices are different from their former colleagues and serve a different role in the institution. They are still a little like "them" because they've sat in those chairs and seen the inside workings of the law machine, yet they're also a little like "us" in that they no longer have any power over cases, parties, or the future meanderings of the law. This calculus changes, of course, if they frequently sit on the lower courts by designation or give an encore performance at the high court itself. But when retired justices who are basically done with the job of judging want to tell us that they regret a vote, how we can improve the system, or that the robes are kind of itchy, then bring it on. They've earned their right to speak out, and we've earned the right to hear what they have to say.
Disclosure: Sonja West clerked for John Paul Stevens.
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