The Supreme Court of the United States has been the least transparent of the three branches of the Federal Government. Congress is now covered by C-SPAN. While C-SPAN does not capture all the meetings it captures enough that an average citizen can judge his own Congressman or Senator and can get some flavor as to how things are done.
The Executive Branch is blessed with an increasingly large gaggle of reporters, some now from Internet websites, who pepper the White House Press Secretary with questions. When the President holds a press conference the media often shouts questions to him as well. It is little wonder that President Bush doesn’t much care to hold press conferences. Would you like NBC’s David Gregory uttering accusations every day?
For all its faults the national news media does cover the Executive Branch. If you supplement what it reports with a good dose of national talk radio you will see a true picture of much of what is going on.
The Judicial Branch is another matter. The Supreme Court permits radio to transmit the oral arguments of Counsel before the Court, an innovation of the late Chief Justice William H. Rehnquist. But that is the public extent of it. The Justices deliberate privately. The Justices give few public speeches. They subject themselves to even fewer media interviews. They are not exactly secretive but they conduct their business very privately.
For a time it was thought that it was almost heretical to criticize the courts, most especially the Supreme Court. The Justices had created an aura for themselves which caused well informed people to speak of the Supreme Court in hushed tones.
That Congress could challenge the jurisdiction of the Federal courts was rarely suggested. In recent years, however, as the Supreme Court has issued more and more controversial decisions, criticism of the Supreme Court has come to the fore. In fact, in conservative circles it is the one topic which brings almost total unity. If you are Libertarian, Old Right, New Right, Religious Right and everything in between you have a grievance against the Supreme Court and calls for limiting its jurisdiction bring cheers. This reaction arises from decisions concerning term limitations, partial-birth abortions, property rights and so on.
Those criticisms are too much for Justice Ruth Bader Ginsburg, presently the only lady on the Court (and only the second in history.) She gave a speech last month which was highly critical of the various proposals to rein in the court. One of the issues which riles conservatives the most is the use of foreign legal doctrine to justify United States Supreme Court decisions. Not only Justice Ginsburg, a Clinton appointee, but also retired Justice Sandra Day O’Connor and Justice Anthony M. Kennedy, Reagan appointees, favorably have cited European jurisprudence or culture in decisions from the Supremes.
Justice Ginsburg suggested that conservative initiatives which seek to withdraw jurisdiction from the Federal Judiciary on controversial issues, which would leave some matters up to Congress or State legislatures, “threaten the independence of the [Federal] Judiciary.”
Representative Tom Feeney (R-FL), who has sponsored one of the measures implicitly critical of the Supreme Court, told THE WASHINGTON POST that “when they talk about judicial independence, they sometimes mean no one should be able to criticism them.” Precisely.
Retired Justice O’Connor last week spoke similarly at Georgetown University Law Center. According to THE WASHINGTON POST she repeated her prior warnings about judicial independence. While she didn’t name either man, she made it clear she meant former House Majority Leader Tom DeLay and Senator John Cornyn, both of Texas.
Ginsburg and O’Connor claim threats against Supreme Court Justices are increasing. Ginsburg cited an Internet item which suggested that because both O’Connor and Ginsburg had cited foreign law in one of their decisions, their rulings are “a huge threat to our Republic and Constitutional freedom.” The website, according to THE POST, called on commandoes to stop being armchair patriots so that “these two justices will not live for another week.”
I take second place to no one in denouncing these kinds of threats. People who advocate killing Justices because they profoundly disagree with them are not conservatives. They are anarchists.
While I certainly would never, ever advocate bumping someone off because he or she wrote an opinion favorably mentioning foreign law I want to make it clear that I profoundly disagree with that trend. Justices Antonin Scalia and Clarence Thomas have been highly critical of that trend. Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr. testified in their hearings that they perceived no justification for citing foreign law when deciding a Constitutional question. Justices John Paul Stevens, Stephen G. Breyer and David H. Souter have been part of the group sometimes citing international or foreign law in United States decisions. Combined with the previously mentioned Ginsburg and Kennedy that leaves a majority which from time to time favors leaning on foreign jurisprudence in interpreting our Constitution.
It also is clear that unless one of the Justices were to change some of his views there would continue to be a five-to-four majority on the Supreme Court for many of these types of issues. Of course, we don’t know yet how Chief Justice Roberts and Justice Alito will vote. And there is always the possibility that Kennedy might return to his roots, having begun more traditionally.
One little bit of encouragement. Justice Breyer said the other day that with the addition of Roberts and Alito the Court was much more animated in discussing cases. That is a good sign. Roberts and Alito have first-rate intellects; yes, so do Thomas and Scalia. But Thomas says little and Scalia has been around for twenty years and his perspective is well known. The intellectual activity generated by Roberts and Alito combined with Scalia and Thomas might just give rise to one or the other Justice’s changing his mind. Kennedy might be the first prospect as he originally was more traditional in his reasoning. As to issues lending themselves to an activist approach Stevens and Ginsburg are around the bend, in my view. Justice Souter, once touted as more conservative, might be persuaded as to an issue here and there. Same for Breyer who, more than the others, seems to enjoy philosophical dust-ups.
The two new Justices indicated in their hearings that they do not fear criticism by Congress as threatening the independence of the Supreme Court.
Again, no death or other threat of violence ever is warranted. But I, for one, am pleased that criticism of the Supreme Court is getting under the skin of former ACLU Counsel, now Justice, Ruth Bader Ginsburg.