Court Was Once Cloistered; Now Its Chief Does 'Nightline'

The "rare public address" by a member of the U.S. Supreme Court isn't so rare anymore.

Just in the past few months, Justice Ruth Bader Ginsburg has invited television interrogator Mike Wallace into her chambers for a well-mannered chat. Justice Antonin Scalia has turned up at a sold-out breakfast meeting of the Northern Virginia Technology Council and mixed it up with the American Civil Liberties Union, and he has publicly debated the Constitution with fellow justice -- but not kindred spirit -- Stephen G. Breyer. Breyer has promoted his book "Active Liberty" on "Fox News Sunday" with the other television interrogator named Wallace, Chris.

And this week, the court's longest-serving justice joined the crowd, as John Paul Stevens said in what was grandly billed as his first network television interview that he considered himself the same "moderate conservative" that President Gerald R. Ford appointed 31 years ago, even though he is now considered one of the court's reliable liberals.

"I don't really think I've changed," he told ABC's Jan Crawford Greenburg. "I think there have been a lot of changes in the court."

Stevens presumably was referring to the growing conservatism of Republican appointees to the court. But there has also been a change in the way justices, now led by Chief Justice John G. Roberts Jr., 51, see their role both in explaining what they do and in fostering a public conversation about the judiciary, according to those who most carefully monitor the court.

"Even five years ago, it would have been astonishing" to see justices interviewed on Sunday-morning news talk shows, said Thomas C. Goldstein, a Supreme Court practitioner who started the popular Scotusblog.com. "The dam has broken on the justices' desire to stay behind the red curtain."

Goldstein says the change has been building since the court's controversial 5 to 4 Bush v. Gore decision, when justices "realized they had to do a better job explaining themselves."

Others say that Roberts, now in the middle of his second term, has become a more visible symbol of the court, especially because his predecessor, William H. Rehnquist, was in poor health for his final years on the court.

"There's a new chief justice and a new court for the first time in a long time," said Orin S. Kerr, a George Washington University law professor and former Supreme Court clerk who frequently comments about the court.

Roberts is "making himself open and present in the legal world," Kerr said. "It may be that he has an effect on the other justices."

Roberts seems comfortable with reporters. In the wide-ranging "Nightline" interview with Greenburg before University of Miami students in November, he covered his childhood in Indiana and his philosophy on the court: The more narrowly tailored the decision, the better. If it can be unanimous, even better.

He was properly self-deprecating about his selection. He told of racing to his house in Maryland from Dulles Airport because he had been told to expect a call from President Bush at a certain time. "The White House was a very efficient operation, and I'm sure if I wasn't there, they'd just go down the list and take whoever was next."

Just this term, Roberts has undertaken a series of beyond-the-Beltway speeches, in New York, Vermont, South Carolina and Florida. He has two more scheduled this month, in Chicago and Dallas.

It is difficult to prove conclusively that the justices are talking more, just as it is difficult to know how much they talked in the past. Partly out of court tradition, their offices do not routinely issue their schedules or publicize their remarks. (The last speech submitted to the court's Web site is an August address by Ginsburg in Turkey.) Justices have long given speeches to law classes and legal conferences and at overseas symposiums, sometimes noticed and sometimes not.

But those who follow the court closely say they have no doubt there has been a change.

"This court is more open and accessible in terms of interviews and public conversations than the court has ever been in its history," said University of Chicago law professor Dennis J. Hutchinson.

Hutchinson and others think the change they see is born of individuals: Justice Anthony M. Kennedy promotes citizen involvement in democracy; Scalia and Breyer are willing to debate their views of constitutional interpretation; and even the quiet Stevens has a new tendency to make news. Stevens said in December that he respected the court's decision that found flag burning to be protected free speech, even though he was on the losing side of that case more than a decade ago.

And, Hutchinson said, "Justice Roberts, in my view, is trying to put a human face on the court."

Part of the perception that justices are speaking out more can be attributed to the vitality of blogs and other publications by lawyers, professors and others that take note of almost any utterance from a justice and provide instant analysis.

Some things don't change. Justice David H. Souter limits his remarks almost exclusively to the chambers, and Justice Clarence Thomas is averse to media interviews. Scalia has always spoken frequently outside the court, but the change is that he now is open to media coverage of the events.

He and Breyer offered their competing constitutional views in the debate co-sponsored by the American Constitution Society and the Federalist Society. Breyer says that "purpose" and "consequences" must be considered; Scalia looks for the original intent of the framers. Both now are careful not to talk about current issues before the court; in 2004, Scalia recused himself from a decision on the constitutionality of the phrase "under God" in the Pledge of Allegiance, after speaking out on the case at a rally in Virginia.

Such considerations are an important part of a judge's impartiality but also underscore a justice's privilege to answer only questions that are welcome.

So Ginsburg in September was abrupt when Wallace attempted to ask her about one of the court's most enduringly controversial subjects. "Stop," she said. "We're not going to talk about abortion."

Research director Lucy Shackelford contributed to this report.