Monday, November 19, 2012

Justices Behaving Badly

Last week Judge Richard Posner kicked off a two-day symposium at Chicago-Kent College of Law on the Supreme Court and the AmericanPublic  with an address on “The Supreme Court and Celebrity Culture.”  Judge Posner offered his characteristic mix of provocation and humor in discussing the “public intellectual activities” of Supreme Court Justices.  His assessment of the last half century of Supreme Court history (going back to the early 1960s, when he clerked for Justice Brennan) was not particularly flattering.  Increasingly during this period, the justices have become too enamored with the limelight of the public stage.  Basically, they talk too much, and they talk too much about things they don’t know anything about. 

Judge Posner was particularly exercised about the slew of “trials” Supreme Court justices have presided over involving historical or literary figures.  Justice Kennedy has a kind of traveling production in which he presides over a murder trial for Hamlet, whose lawyers argue that their client was insane when he killed Polonius.  In 1987, Justices Blackmun, Brennan, and Stevens participated in a mock trial in which the question of the authorship of Shakespeare’s plays was considered.  The three-justice panel concluded that William Shakespeare was indeed the author, although Justice Stevens subsequently reconsidered the issue and has come to believe that the real author is Edward de Vere, the Earl of Oxford.  Apparently, he has persuaded some of his colleagues on this point. 

While some might see this as all in good fun, Posner thinks not. Leave this kind of discussion to historians and literary scholars, he said.  There is something undignified about Supreme Court justices pontificating on such matters. 

Fortunately, Posner’s stern judgment did not extend to Justice Sotomayor recent visits to Sesame Street.  This was fine, he explained.  The justice simply was explaining the role of the judge in resolving disputes, something she is eminently competent to do.  (Posner was referring to Justice Sotomayor’s first visit to the show.  In her more recent appearance, the justice gave Abby Cadabby career advice, which included the heartbreaking admonition that princess was not a solid career path: “Pretending to be a princess is fun, but it is definitely not a career.”  Judge Posner did not opine on whether this topic risked veering too far from the justice’s area of expertise.)

Posner also discussed Supreme Court oral arguments, and here too he saw troubling developments.  In their ever increasing volubility from the bench, the justices were taking things too far, further undermining the dignity of the Court.

(When politely pressed during Q&A on whether he saw any tension between his criticism of the justices and his own famously outspoken and astoundingly wide-ranging career as public intellectual, Posner laughed, suggested that his books are intended as serious scholarly interventions, and shifted the subject.)

Posner concluded his remarks on a rather mischievous note, explaining that ultimately these undignified practices by Supreme Court justices were inconsequential because dignity had disappeared from public life.  It is hard to know how seriously to take this point.  To be sure, standards of dignity for our public officials have evolved quite dramatically over the past half century.  But there are still norms of propriety that operate in public life.  Furthermore, it would seem that if there were any place where these norms have been particularly resilient, it would be with regard to the behavior and activities of Supreme Court justices. 

While there has been a trend in recent decades toward a more publicly engaged Court, there are still some quite powerful assumptions about proper behavior for a sitting Justice.  Recall, for example, the outcry over Justice Scalia’s visit to Michelle Bachmann’s Constitution Study Group, or the criticism of the Court that followed oral arguments in the health care case.  People still have certain expectations of dignified conduct for Supreme Court justices.  Furthermore, it is hard to imagine members of the current Court engaging in some of the extrajudicial activities that characterized earlier Courts—Justice Jackson leaving the Court for a year to prosecute Nazis in Nuremberg; Chief Justice Vinson playing poker with President Truman (and offering advice on the constitutionality of seizing the steel industry); Justice Douglas angling for the presidency; Chief Justice Warren leading the investigation into the Kennedy assassination; Justice Fortas continuing in his role as President’s Johnson’s confidant and advisor while on the Court.  Perhaps our more recent generation of justices turn to Shakespeare and Sesame Street simply because they have fewer demands on their free time?