Don’t Get Around Much Anymore

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The Sjupremes / Untitled

Here’s a very interesting article about the extra-curricular activities of current Supreme Court justices: http://www.nytimes.com/2015/06/02/us/politics/justices-get-out-more-but-calendars-arent-open-to-just-anyone.html?&hp&action=click&pgtype=Homepage&module=second-column-region&region=top-news&WT.nav=top-news&_r=0

Their outings seem to divide into two categories. One is visits to law schools where the justices are treated like living relics; the article’s reference to the “adoring crowd” that greeted Justice Ginsburg at Harvard gets the tone of these events well. These are ceremonial gatherings where any controversial issues are ignored.

I remember a visit that Justice Kennedy paid to my school soon after the controversial Bush v. Gore decision. Part of the program was a lunch with the law faculty. As the lunch began, the Dean announced that the justice did not think it appropriate for him to discuss past cases, but would be very interested to know what casebooks we were using in our classes these days.

The other type appearance is talks before “friendly” audiences. The conservatives seem to favor the Federalist Society; the liberals prefer talking at the American Constitution Society. I suspect that the justices cannot help but coming away from these encounters thinking they are doing a pretty good job.

That to me is the problem. Judicial review is a legal power with important political ramifications, but the justices don’t hear from a broad spectrum of the citizens who are impacted by their decisions. This is also true to a large extent for elected officials who increasingly belong to the economic and social elites of our society, but at least members of congress have to answer the occasional hostile press question or read critical surveys of their chances of re-election.

And now it is routine for justices to stay in office into their 80’s so I think we can’t be too surprised if they are a little out of touch. They do rotate clerks each year, but I doubt many clerks see their role as challenging their present employer and future patron on controversial issues. And they can’t learn much from each other about the lives of ordinary Americans because all of them lead the same circumscribed lives.

The answer here is to require justices to have a chance for a second career. Let’s free them by installing term limits either by law or custom. Some justices would settle for partnerships in large law firms, but others might make good use of their new freedom. Think of Justice Scalia as a late  night television talk show host or Justice Sotomayor as the next generation’s Oprah.

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