JURISPRUDENCE
Supreme Court TV
The justices of the Supreme Court have served hard time in the makeup chair in recent months. John Paul Stevens and John G. Roberts Jr. gave prime-time interviews to ABC's Jan Crawford Greenburg; Ruth Bader Ginsburg chatted with CBS's Mike Wallace in chambers; and Stephen G. Breyer has logged almost as much time on camera as Lindsay Lohan -- including a sit-down with Charlie Rose and a gig on "Fox News Sunday." And Roberts, the chief justice, is part of a documentary airing on PBS next week.
Even some of the justices who are reluctant to talk on camera have been more amenable to speaking on the record lately. Breyer and Antonin Scalia engaged in a wide-ranging public debate in December that is available on the Web. And ABC's Crawford Greenburg secured interviews with nine justices for her new book, "Supreme Conflict." Nine justices. That's a far cry from "The Brethren."
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What the justices have discussed in these interviews has ranged from the personal -- the chief justice's young son likes Spiderman -- to judicial philosophy. And that has opened the door to a more robust and nuanced national conversation about constitutional law and the role of the judiciary. Whether it's Roberts extolling the virtues of unanimity and minimalism or Breyer selling his constitutional theory of "active liberty," the court has finally taken its case to the airwaves, and that is unequivocally good for a nation that -- for better or worse -- has pretty much taken up permanent residence there.
But a funny thing happened on the way to the sound stage. Some justices are refusing to talk about areas of the law in these extra-judicial discussions. And that raises interesting questions about which justices avoid which topics, and why. Does this sudden selective chill reflect fissures on the court, in the law, or both?
We had, for example, Ginsburg talking openly with CBS's Wallace in October until he raised the subject of abortion. Out came the ice water: "Stop!" she said. "We're not going to talk about abortion." Ginsburg also refused to discuss the separation of church and state and Bush v. Gore, insisting that "questions are going to come before this court on those turbulent issues."
And as Fox's Chris Wallace asked Breyer about abortion in December, Breyer interjected, explaining: "I decide abortion cases when they come up. But I know perfectly well that anything I say on that subject is enormously volatile." Breyer also considered it improper to "talk about that subject, particularly in a public forum that isn't the court." When Wallace asked for clarification, Breyer repeated: "No, not any question to do with abortion." Breyer similarly refused to touch the subject at a public debate with Scalia in Washington in December, even though Scalia had no such qualms.
At first this looks like a variation on the old confirmation two-step. That's the dance that happens at judicial confirmation hearings wherein a prospective justice refuses to answer questions about subjects that "may come before the courts," and, yes, the court heard an abortion case this term. But that's not the calculus that the justices seem to be using these days: At that same debate in December, Breyer spoke about Brown v. Board of Education, even as the high court was hearing two cases that raised related issues that very week. He briefly discussed the presidential powers cases in his interview with Wallace. (You can bet that issue will come before the court again soon.) And in her interview with Mike Wallace, Ginsburg spoke passionately about the court's decision in a major case involving the presidential authority to create military tribunals, concluding, "In this country, we have no royalty, we have no king who has absolute authority."
Stevens recently discussed the flag-burning case. And this week Scalia told an audience at Iona College in New York that Florida's handling of the recount in Bush v. Gore was a violation of the Constitution's guarantee of equal protection under the law. "Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," he said, even though such cases will come before the court again in the future. Scalia let the crowd know that the case is firmly in the history books: "It's water over the deck -- get over it," he said. And given that Bush v. Gore explicitly claims to hold no precedential value in future cases, perhaps he's right.
So how do we account for the justices' sudden silences and pregnant pauses? In part, it must be personality. Roberts seems unwilling to discuss cases or doctrine off the bench; Breyer is inclined to talk about them, but mostly in the abstract; and Scalia is inclined to gab about pretty much anything.
But there's something else at work here -- something to do with what Breyer calls the "volatile" cases and Ginsburg calls the "turbulent" ones. For both justices, abortion clearly falls into that category, but in general they seem to avoid talking about the moral issues that divide the court just as they divide the country: gay rights, race-based decision-making, abortion and religion. On these issues, the courts' liberals often strive to use constitutional doctrine to protect minority rights. And where there is a sound constitutional basis for these positions, it has been tricky for them to explain them in a sound bite.
The unifying theme in most recent judicial speeches has been this: The power belongs to the people. Whether it's Breyer urging citizens to engage in government or Scalia insisting that it's the job of the people, not the court, to modify the Constitution, the universal message of the justices is not to fear the court, but to become active in the legislative process. But that's only half the story, and the justices know it. Those cases are the tough ones, and, invariably, the hardest to explain. As Scalia continues to prove, the taut lines of his theory of "originalism" tend to be an easier sell than the blurriness of a "living Constitution." Which may be why the justices sometimes talk the loudest when they say nothing at all.
Dahlia Lithwick covers legal affairs for Slate, the online magazine at www.slate.com.
