High Court: Justices increasingly speaking outside the courtroom

By Robert Barnes
Washington Post Staff Writer
Monday, April 5, 2010

One of the first things to remember when discussing rules for Supreme Court justices is that, well, there are very few of them. It is hard to think of a more independent and self-policing group in government than the nine members of the high court.

With the emphasis on "self."

Their independent visions on how best to conduct their lives as justices is on display in many facets, but one that has drawn recent attention is when to speak, and what to say, outside the courtroom.

At odds with the justices' cloistered image, the current members of the court mix it up with each other, take positions on current political issues or even -- and this one did get some attention -- talk back to the president.

"This court is probably more active in speaking outside the courtroom than any other court has been," said former solicitor general Gregory G. Garre. "The court is becoming more public."

The most obvious example is the dust-up between Chief Justice John G. Roberts Jr. and President Obama over Obama's decision to criticize the court during the State of the Union address. Obama brought Democratic lawmakers to their feet with his denunciation of the court's 5 to 4 decision that allowed a more active role for corporations and unions to spend money on candidate advocacy.

Roberts later told a questioner that it was "very troubling" for the president to have created the image of "one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court -- according to the requirements of protocol -- has to sit there expressionless."

It is notable, of course, that Roberts was taking questions at all. The chief justice had just given a predictably noncontroversial speech to University of Alabama law students about the court's history, an old standby for those in his position. But unlike his predecessors, Roberts then took questions.

In such situations, justices make their own rules about how candid to be.

For instance, Roberts was also asked about the vast amounts of money now being spent on judicial elections in the states. He dodged, saying he had to be careful because it raised the issue of whether states should even have elected judiciaries.

That's an issue, he said, that "I have views on, but I'm not sure it makes much sense for me to share them."

A couple of nights later, Justice Ruth Bader Ginsburg did not feel a similar restraint. In response to a question at a meeting of the National Association of Women Judges, she said the system of electing judges and its accompanying campaign contributions are at odds with the notion of an independent judiciary.

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