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Supreme Court justices are being served on late-night television

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Heeeeere’s John, who is saying something about cuss words and a hammer.

Heeeeere’s Antonin, in a faked photograph that makes it appear he wears nothing beneath his judicial robe but black socks and garters.

Heeeeere’s John Paul, who is being badgered into declaring whether the Supreme Court’s ruling in Bush v. Gore was just a “great” decision or its greatest decision.

All of a sudden, the Supreme Court is fodder for late-night comedians, and the result is not something for which the image-conscious justices are likely to set their DVRs.

If they know how.

The foibles of President Obama, Republican presidential candidates and members of Congress are manna for late-night shows, of course. But the justices — whose time in the public spotlight is far more limited and who forbid television cameras from recording their business — have proved to be a more sporadic and elusive target.

As Jon Stewart put it recently on “The Daily Show”:

“There’s a third and equal branch of government, the judicial branch, which by now must be feeling somewhat ignored,” he said.

Stewart vowed to change all that “with our brand-new segment: A Love Supreme.”

Stewart’s compatriot on Comedy Central, Stephen Colbert, has really taken the lead on bringing the court to the viewers. He’s done as much as any newspaper editorialist to mock the court’s 2010 decision in Citizens United v. Federal Election Commission , which eased campaign finance rules. He started his own fundraising “super PAC” and invited retired Justice John Paul Stevens on his show to discuss Stevens’s dissent in the case.

Even the court’s non-comedic critics are finding a home on late-night. Sen. John McCain (R-Ariz.) delivered more of a punch than a punch line when he recently told David Letterman that the court’s decisions on campaign finance “showed a degree of ignorance and naivete that I found astonishing.”

The current interest in the court is not surprising. It will decide a series of cases this year — including the constitutionality of the health-care overhaul — as important as any the justices have faced in years.

The Supreme Court occupies an unusual place in the federal firmament. When justices venture into the public sphere, they do so “gingerly,” said Richard Davis, a professor at Brigham Young University who wrote “Justices and Journalists: The U.S. Supreme Court and the Media.”

“They spend a lot of effort to focus attention on the product” of their work rather than their individual roles in the process, Davis said. “We’ve given the court a certain aura, and that gets diminished when the justices are talked about on Colbert.”

Not that they have much choice in the matter. Colbert, the “comedian/presidential candidate/super PAC founder,” as he was called recently by Slate columnist Dahlia Lithwick, has made the court’s campaign finance decisions an important component of his shtick.

“Nothing has ever prepared the justices for the public opinion wrecking ball that is Stephen Colbert,” Lithwick wrote.

Stewart, meanwhile, has used audiotapes of the court’s oral arguments to buttress his comedy. From a case on the Federal Communications Commission’s authority to monitor the airwaves for indecency, he pulled a quote by Chief Justice John G. Roberts Jr. about children hearing cuss words after a household accident with a hammer.

“I guess it explains that great PBS show, ‘This Old [Expletive] House,’ ” Stewart said.

Such “out of context” excerpts are frequently cited by members of the court when they explain why they don’t want to televise oral arguments. It is partially for that reason that Davis thinks it is unlikely the court will grant requests from members of Congress and the media to allow cameras in for next month’s health-care arguments.

The Senate Judiciary Committee last week passed a bill to televise most arguments before the court, even as some lawmakers acknowledged the potential constitutional problems of one branch of government telling another what to do.

Justices, who often employ wild hypotheticals to explore the trajectory of a lawyer’s arguments, say their words would be pulled out of context to make them look foolish.

Justice Samuel A. Alito Jr. , for instance, once asked whether Congress was powerless to ban the showing of repugnant behavior that might be legal in another country. Human sacrifice, for instance.

“People here would probably love to see it. Live, pay per view, you know, on the Human Sacrifice Channel,” Alito said.

Justices say there is a difference in seeing such a quote in print, and watching the justice deliver it on television.

Justice Antonin Scalia has been one of the fiercest opponents of televising arguments, although he is one of the court’s sharpest wits, with a perfect sense of comedic timing.

Scalia once told a Federalist Society audience that he could “ham it up with the best of them. I’d do very well.”

Justices generally prefer safe outlets for television appearances. Justice Sonia Sotomayor, for instance, last week settled a dispute between Goldilocks and Baby Bear in a guest spot on “Sesame Street.”

But the justices do pretty well when they brave the late-night gantlet. Retired Justice Sandra Day O’Connor could hardly have received more deferential treatment than Stewart provided when she went on “The Daily Show” in 2009.

And Stevens seemed to enjoy sparring with Colbert, who was doing the badgering on the Bush v. Gore question. When Colbert asked the 91-year-old jurist whether he had any regrets in his long career, Stevens replied:

“Other than doing this interview? No. ”

Staff researchers Alice Crites and Lucy Shackelford contributed to this column. For more High Court columns, go to washingtonpost.com/
fedpage.

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