When do Supreme Court justices need to just sit down and be quiet?

The law, lawyers, and the court.
Dec. 14 2010 6:28 PM

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When do Supreme Court justices need to just sit down and be quiet?

John Paul Stevens. Click image to expand.
Retired Justice John Paul Stevens

During his 35-year career on the Supreme Court, Justice John Paul Stevens gained a reputation as the mild-mannered jurist who sought permission before asking questions of oral advocates. Over his decades on the bench, Stevens gave few interviews, rarely made controversial remarks in his speeches, and wrote no books.

Then he retired.

Now, mere months after hanging up his robe, Stevens has been traveling the country, letting us know what he really thinks on everything from his views on the opposition to the "Ground Zero Mosque" ("American Muslims should enjoy the freedom to build their places of worship wherever permitted by local zoning law") to capital punishment (a system infected with racism, political exploitation, and "regrettable judicial activism") to the merits of Bush v. Gore ("it had obviously no merit to it").

And he is not alone. The two other retired justices have been dishing as well. Earlier this year, the formerly mild-mannered Justice David Souter let loose about the messy realities of constitutional interpretation, and Justice Sandra Day O'Connor came to the defense of the three Iowa Supreme Court justices who were facing retention elections because of their votes in favor of same-sex marriage.

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Other justices don't even bother to wait until they are off the bench to speak out. Justice Stephen Breyer told Fox News this weekend that the Founders were in favor of gun regulation and that his colleagues got their history wrong. Justice Ruth Bader Ginsburg was equally blunt about her desire for more women on the court. Justice Clarence Thomas responded to criticism of the court's campaign finance ruling, as did Justice Samuel Alito (albeit less directly and more in the manner of someone cheating at charades). And then there is Justice Antonin Scalia, upon whom we have depended for decades for enlightenment (sometimes with corresponding and arguably obscene hand gestures) on controversial issues ranging from abortion to civil liberties for homosexuals and women's equality (or lack of it).

One can only imagine what he'll say when he teaches the upcoming class on the Constitution to members of Congress that's being organized by Rep. Michele Bachmann.

Occasionally, the justices slip their personal views into their judicial opinions. A notable example was Justice Harry Blackmun's plea in his concurrence in the 1992 abortion case Planned Parenthood v. Casey. After pointing out that the constitutional right to abortion hung by a one-vote thread, Blackmun candidly laid the judicial and political realities on the line: "I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made." Stevens offered an equally pointed extrajudicial observation in a dissent in a Seattle schools voluntary desegregation case in 2007, when he observed, "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."

There has been growing debate about the ethics and proper parameters of judicial recusals, where the concern that a justice's extracurricular activities, investments, or relationships suggest that he or she has prejudged a case. Last week, for instance, questions were raised about Judge Stephen Reinhardt's fitness to evaluate the appeal over California's Prop 8 because of his wife's involvement in the case. Today the Internet is buzzing with accusations that Virginia's Judge Henry Hudson had a financial connection to a group that worked to oppose the Obama health reform law. These are hard questions that go to basic matters of judicial behavior: Who can they marry? Where can they invest? With whom can they go to shoot some waterfowl?

But if we put aside these difficult issues related to extrajudicial entanglements, there lies a more basic matter that the justices must also begin to address. What about the judicial gut-spilling? Above and beyond the ethical rules that require a justice to recuse herself if she has evinced bias in a specific case, should the justices be held to a different standard when it comes to what they say and how they say it? Should these standards be different for sitting and retired justices? As justices speak more and more frequently off the bench, should they come to some agreement about when their words undermine the institution as a whole?

One viewpoint—let's call it the old school—holds that justices should say nothing that isn't contained within the four corners of a written opinion. When justices pontificate off the bench, it sows confusion and controversy and undermines the impression that jurists all float above the fray. The other side holds that transparency is always better than mystification and that so long as there is no real threat to the court's impartiality in a particular case, there is great value in lifting the veil of secrecy around the workings of the court and revealing the men and women hiding out behind the red velvet curtain.

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