Our loquacious justices

TODAY, THE U.S. Supreme Court will assemble to hear one of the most important cases of the term: Hamdan vs. Rumsfeld, which will test President Bush’s claim of near-absolute authority over detainees in the war on terror. But most of the attention will be fixed on the fourth seat from the right and its occupant, Associate Justice Antonin Scalia, who, in a clear breach of judicial decorum, if not judicial ethics, recently divulged his views on the issues in the case before oral arguments had even begun.

Scalia’s comments, delivered in Switzerland earlier this month, were only the latest example of Supreme Court justices talking out of school. In fact, the justices have been entering the public debate recently in a way that would have been viewed as scandalous just a couple of decades ago.

Abandoning a long-held tradition of avoiding public speeches (other than the occasional mundane graduation address), justices have been holding forth on every subject from the power of the political right to “morality legislation” to the war on terror. The model of the reclusive jurist is being supplanted by a type of judicial Tony Robbins, who regularly boosts his “constituency” on the left or the right with energizing speeches.

More than any other justice, Scalia has helped forge this new model of the celebrity justice. He has long been the enfant terrible of the court: precocious, unpredictable, brilliant. But his apparent inability to restrain himself in public forums has caused no end of problems.

In 1996, he denounced theories of a constitutional right to die when there were two cases on that very question pending before the court. In 2003, he appeared at a “religious freedom rally” sponsored by the Knights of Columbus in Virginia to denounce attacks on the Pledge of Allegiance when a challenge to the pledge was pending before the court. Rather than wait for the oral arguments, Scalia pumped up the audience by declaring that the effort to remove God from the Pledge of Allegiance was “contrary to our whole tradition.” On that occasion, Scalia had to recuse himself.

The latest public proclamation from Scalia is even worse. In Switzerland, Scalia responded to a question about the claims of detainees like Salim Ahmed Hamdan by saying “give me a break.” Hamdan -- Osama bin Laden’s former driver -- is arguing that the federal courts should have jurisdiction over his case, but Scalia dismissed the premise of his claims and emphasized that “if he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield, and they were shooting at my son, and I’m not about to give this man who was captured in a war a full jury trial. I mean, it’s crazy.”

Scalia’s son, Matthew, served with the U.S. Army in Iraq.

Scalia’s statements are a textbook example of an improper public statement by a jurist. He should clearly withdraw from the case. Not only did he indicate that he had already made up his mind on the subject before Hamdan made a single argument, but he expressed a personal interest that affected his decision.

Still, Scalia is not alone in playing to his constituency. Associate Justice Clarence Thomas routinely speaks to conservative groups. In 2001, he appeared before the conservative American Enterprise Institute to prod its members in their fight in the culture wars. Associate Justice Ruth Bader Ginsburg was criticized for appearing with Sen. Hillary Rodham Clinton (D-N.Y.) in 2003 at the American Constitution Society, a group committed to more liberal interpretations of the law.

Ginsburg also made headlines with a speech in February in which she said that conservative critics of the court in Congress were fueling an “irrational fringe” that had threatened her life.

When she was on the court, Associate Justice Sandra Day O’Connor was repeatedly accused of campaigning for the position of chief justice with various stump speeches.

Of course, there was a time when justices did not have “constituencies.” Historically, members of the Supreme Court have jealously protected not just their own privacy, but the image of the court as detached from politics. Jurists are barred from speaking publicly about the merits of pending cases because they are supposed to be impartial and open arguments from all parties. But Scalia has reinforced the view of this court as pre-wired for certain results.

The trend is now obvious, but the direction should disturb lawyers and non-lawyers alike. It seems little to ask for justices to refrain from public speeches on legal issues in exchange for their unique offices. We were better off when justices spoke primarily to history, and when their only constituency was the rule of law.