What the Supreme Court Can Learn From Gabby Giffords and Jeff Flake

The law, lawyers, and the court.
Jan. 25 2012 3:26 PM

The Political and the Personal

What the Supreme Court can learn from Gabby Giffords and Jeff Flake.

Jeff Flake and Gabrielle Giffords.
Rep. Jeff Flake with Rep. Gabrielle Giffords during President Barack Obama's State of the Union address

Photograph by Alex Wong/Getty Images.

Without question the most touching moment at last night’s State of the Union was the heartfelt welcome given to Rep. Gabrielle Giffords, who steps down today to continue her recovery from the gunshot wounds she sustained in Tucson, Ariz., last year. Not only was Giffords welcomed to the chamber with a whooping standing ovation, she was flanked throughout by colleagues whose ideologies could not be more different from her own. Explaining why he rose to help her stand for every ovation she offered President Obama during his speech, even when it meant he was the only Republican on his feet, Rep. Jeff Flake said that the optics just didn’t matter to him: “After sitting next to an empty seat last year, I couldn't be happier to have Gabby back in the House chamber for this year's State of the Union speech … Gabby's courage, strength, and optimism is able to cut through the partisanship and bring out the best in Congress."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

It was a welcome reminder that even in the rankly toxic House of Representatives, sometimes the personal transcends the ideological and that civility and empathy can overmaster appearances.

Contrast that moment to the growing furor over Supreme Court recusal rules. Chief Justice John Roberts appears to have only added fuel to the fire with his year-end State of the Judiciary address, in which he defended his (unnamed) colleagues from public accusations of bias with assurances that he knows them personally and trusts them to make sound recusal decisions because of the strength of their characters. At one level, Roberts did nothing more than Rep. Flake did so honorably last night: He reassured those worried about Justice Elena Kagan's and Clarence Thomas’ fitness to decide whether to sit on the healthcare case that he has “complete confidence in the capability of his colleagues to determine when recusal is warranted.” In effect, he was saying that based on his personal knowledge of their characters, ideology was simply off the table. Isn’t that precisely the sentiment that so moved those of us who saw Jeff Flake standing beside Gabby Giffords last night?

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Yet the response to the chief justice’s personal pledge has been less than delighted. As the always insightful Sherilynn Ifill put it earlier this month, “this is not a matter the Chief can simply determine based on his confidence in the integrity of his colleagues.” In a piece today in Politico, Professor William Yeomans and Herman Schwartz note that Roberts’ argument “seems based on the proposition that the justices are good people and able jurists—so they don’t have to be officially bound by a code or explain decisions governing their conduct or recusal.” They argue that it’s all well and good for the chief to vouch for his colleagues as “jurists of exceptional integrity and experience.” But that doesn’t replace the need for openness and transparency about the ethical rules they apply to themselves and the basis on which their own recusal decisions are made.

In one sense, the court and the Congress operate from completely opposing assumptions. Members of the House and the Senate like to pretend everything is always wildly political, even when it isn’t. (Anyone who’s ever watched members of opposing parties pal around when the cameras are off knows how much divisions can be played up in the name of theater.) Members of the court like to pretend that they are all friends and colleagues first and foremost, even when it’s clear that politics can and do corrode those relationships. The day after Bush v Gore was decided Justice Thomas famously told a group of high school students that "I have yet to hear any discussion, in nine years, of partisan politics" among the justices. He added, "I plead with you that, whatever you do, don't try to apply the rules of the political world to this institution; they do not apply … The last political act we engage in is confirmation." Justices Breyer and Kagan have made similar arguments about collegiality at the court. It strains credulity to hear that there were no hard feelings among the Justices after Bush v. Gore, that the stinging dissents written by Justice John Paul Stevens toward the end of his career—accusing the conservatives of conservative activism—were met with smiles and high fives in the robing room.

The truth is that both narratives have institutional purposes. Congress (mostly) benefits from appearing more divided than it actually is. Elected officials look tough and responsive when they toe their party line and avoid the appearance of government as a self-serving club of chummy insiders. The Supreme Court benefits from appearing less so. The problems arise not because we don’t believe that the justices are all good and wise people. They arises when the chief justice uses that assessment as a rationale for ignoring the fact that good and wise people can have profound and consequential political differences. What was so moving about the interaction between Flake and Giffords was that it revealed something we all suspect to be true: That close personal relationships can transcend politics and ideology even in rancorous political times. What’s so disturbing about the chief justice’s ethics deflection is that it reveals something we also suspect to be true: The court is using the appearance of lofty bipartisanship to obscure political divisions we all know to be there.

For those of us who have admired the ways in which civility as practiced at the Supreme Court allows for a uniquely elevated and respectful discourse, it’s doubly troubling to see civility deployed as a shield to hide questionable judicial conduct from the public. And lest this all appear to be just a tempest in a teapot, in his opinion declining to recuse himself from cases in which he has presided over law firms that once represented him for free, Justice Michael Gableman of the Wisconsin Supreme Court cited Chief Justice Roberts’ memorandum for ethical support. Shrouding oneself in an impenetrable black “Trust Us” cloak should not be a means of sidestepping legitimate recusal questions. The prospect of having the entire Wisconsin Supreme Court now placed in the unenviable position of having to sit in judgment (as they now must) of the conduct of their colleague (and friend) is even more discouraging.

There is undoubtedly some sweet spot between those touching moments when elected officials are able to rise above partisanship and those galling moments when those with lifetime tenure can lay claim never to descend into partisanship. It may be as simple as seeing civility as an end in itself, as opposed to a means to some other, less noble, end. Just as glimpses of occasional acts of humanity can do so much to restore public confidence in Congress, acknowledging actual human failings among the justices might paradoxically restore some confidence in the court.