Slate's Jurisprudence: Justices Talking Out of Court

Several U.S. Supreme Court justices, most recently Ruth Bader Ginsburg and Antonin Scalia, have raised eyebrows with remarks made in recent speeches outside the courtroom, while they are still considering cases. Madeleine Brand discusses the issue with Slate legal analyst Dahlia Lithwick.

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MADELEINE BRAND, host:

Supreme Court Justices are generally supposed to confine their opinions to their written rulings. Over the past few months, though, several current and former justices have raised some eyebrows by making rather pointed public comments about their work and their political enemies. Our friend Dahlia Lithwick is Slate.com's legal analyst and she's here to help us understand what the justices are saying and why they're saying it. Hi, Dahlia.

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Hey, Madeleine.

BRAND: Well, give us a rundown of some of the more controversial comments made recently.

Ms. LITHWICK: It's been a strange couple of months. First, we had Justice Ruth Bader Ginsberg went off to South Africa in February, and she said that Congressional Republicans who were attempting to sort of stop the Justices from sighting international law in their opinions were fueling, quote, "the lunatic fringe," and then she connected that with death threats, actual death threats that she and Justice Sandra Day O'Connor had received last year. Justice Scalia shortly after went off to Switzerland, right before the court was going to hear an enemy combatant case. Essentially gave a speech saying that enemy combatant's demands for trials were, quote, "crazy," and said things like give me a break, and went on to say his own son served in Iraq, and so, you know, he was clearly very emotional about it.

There were calls afterwards for his recusal in that case. Then Sandra Day O'Connor got up and gave a speech in Georgetown--now she's a former Justice, but still--and she basically said that Republican demagogues in Congress, and she did not name names, but she said they were leading to this sort of culture that eventually would devolve into, quote, "a dictatorship." And then last but not least, Justice Anthony Kennedy last week gave a speech, again in Washington, where he accused, again unnamed editorialists of not reading the court's opinions before writing their editorials. So just in general, a lot of big talk out of the Supreme Court Justices this last couple of weeks.

BRAND: Well, it's not as if they're mute when they leave the bench. I mean, they are, they do speak, and think, and walk and talk just like the rest of us, and I'm just wondering if there are any rules against what they say in public.

Ms. LITHWICK: Well, the only rule, and it's not really a rule, that binds them is Title 28, Section 455 of the U.S. Code. And that says that judges need to sort of recuse themselves when they make comments or act in a way in any case where, quote, "their impartiality is questioned." Now A, who knows what that means, but B, these are self-enforcing rules, so the Justices themselves get to decide when they've violated it. Beyond that, I think there's a general feeling that the Justices need to sort of comport with this idea of dignity and gravitas, and so they're not supposed to sort of go off half-cocked. When they talk, they're supposed to be judicious and temperate.

BRAND: Well, Dahlia, what is the possible back-story here? Why would the justices make these political public comments?

Ms. LITHWICK: Well, I think there is, right now, this sort of culture of judge bashing, and it really does concern the judges. Possibly because it's escalated to real violence in some cases in recent years, and I think the justices are very anxious about that. So what they're trying to do, I think, is sort of push back. They're doing it in this very sort of weird, sneaky passive-aggressive way with, you know, without naming their adversaries, giving this off-the-record speeches. Justice Scalia's famous for having his security people seize and destroy tape recorders in the crowd. So there is this real question of you're either on the record or you're off the record. You kind of can't have it both ways.

BRAND: And do they realize how on the record they are when they make these speeches?

Ms. LITHWICK: Well, I think that's one of the problems. I think in some ways they think it's still 1972, and they don't realize that you can't just go off to Switzerland or South Africa and something you say doesn't become reported. It's immediately blogged now. The days of going off to some, you know, BBQ, and giving some off-the-record remarks are over. I mean, it could either sort of go on the record and say what they want to say, name names and take the gloves off, or they need to, to stop speaking altogether, but this sort of half speeches from the shadows I think is not working at all.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate and for us here at DAY TO DAY. Thank you, Dahlia.

Ms. LITHWICK: My pleasure, Madeleine.

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