High Court: Justices increasingly speaking outside the courtroom

By Robert Barnes
Washington Post Staff Writer
Monday, April 5, 2010; A09

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.

"If there's a reform I would make, it would be that," she said.

Justices, of course, have to be careful about commenting on cases that come before them. In 2003, Justice Antonin Scalia had to recuse himself from a case contesting the inclusion of the phrase "under God" in the Pledge of Allegiance after he gave a speech to a Knights of Columbus gathering endorsing the concept of keeping God in "the public forum and political life."

Ginsburg was criticized for saying -- before the court's decision in the case had been announced -- that during oral arguments, her male colleagues seemed to minimize the trauma of a 13-year-old girl who had been strip-searched by Arizona school officials searching for drugs. "It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood," she told USA Today.

The court ruled 8 to 1 in the girl's favor.

The interviews and speeches often reveal the justices in ways different from their stern, black-robed images and carefully worded opinions.

Justice Anthony M. Kennedy can be formal and grandiloquent in his writing. But recently he was far more down-to-earth criticizing California sentencing policies that he said have led to the state's prison overcrowding.

"The three-strikes law sponsor is the correctional officers' union, and that is sick!" the Los Angeles Times quoted Kennedy as telling a legal group.

Justice Clarence Thomas, who hasn't asked a question during oral arguments in four years, is far more outgoing when he hits the road. He recently told Florida law students he likes hanging out "at their joints, with dead animals on the wall, and old tags and food I can't eat."

He made fun of his conservative image when he was asked his favorite constitutional amendment. "You want me to say the Second, right?" Thomas joked, referring to the right to bear arms. Instead he mentioned the post-Civil War amendments that promised equality to all. Those are "really important," Thomas said, "or I'd be in a rice field right now."

Pamela Harris, director of Georgetown's Supreme Court Institute, said the new candor should be welcomed. "I think people want to know what these justices think," she said.

But she also can't help but be struck by the different approach taken by those nominated to the court, who have found the easiest way to confirmation is to deflect all inquiries.

"On the one hand, you have the justices out there being more candid than ever, and the nominees refuse to answer all questions on the grounds that it might [concern something that would] come before them," Harris said. "I don't know how you reconcile those two things."

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