Within a week of President John F. Kennedy’s assassination on Nov. 22, 1963, President Lyndon B. Johnson created a commission to investigate the slaying and leaned hard on Chief Justice Earl Warren to agree to serve as chairman. Warren reluctantly took on the assignment and over the next seven months led a highly limited review of evidence gathered by others that concluded just as Johnson wanted that Lee Harvey Oswald had acted alone: no conspiracy.
Warren apparently managed to juggle the commission’s work with his Supreme Court duties, but the commission’s report is now recognized as woefully inadequate. The fault was not Warren’s: the CIA withheld important evidence of Oswald’s activities and connections. But wherever the blame may lie, Warren’s extrajudicial assignment did no good for him or for the court.
No sitting Supreme Court justice has taken on an analogous off-the-bench assignment since then, apart from the chief justice’s statutorily designated position as chancellor of the Smithsonian Institution. In that role too, chief justices have not shined. Chief Justice William H. Rehnquist in 2001 helped authorize a whopping salary increase for the Smithsonian’s general secretary, who resigned in 2007 after disclosures of absenteeism and authoritarianism. Despite the governance crisis, Rehnquist’s successor, John G. Roberts Jr., that year helped water down recommended reforms, including a reduction of the chief justice’s role to non-voting board member.
The lesson of these episodes seems clear: justices should stick to their knitting. But Noah Feldman, a Harvard Law School professor and former Supreme Court law clerk, argues that the justices should spend more time off the bench, even to the point of taking on political responsibilities and engaging in political activities.
The justices’ “disengagement from public life,” Feldman writes in an op-ed in The New York Times, stems from “the imagined ideal of the cloistered justice.” This monastic imperative, he says, has real costs. “Isolated justices make isolated decisions,” Feldman writes. The evidence: Clinton v. Jones (1997), with its naïve assumption that allowing a civil suit (see: Paula Jones) against a sitting president (see: Bill Clinton) would not interfere with his duties as chief executive (see: impeachment).
Feldman writes against a specific context: the current controversy over off-bench activities of conservative justices Antonin Scalia and Clarence Thomas. Common Cause is calling for an ethics investigation of Scalia’s and Thomas’s participation in events sponsored in 2007 and 2008, respectively, by the billionaire Charles Koch, bankroller of conservative and libertarian causes. And Scalia came in for widespread criticism from the New York Times editorial board, among others for his Jan. 24 appearance before a closed-door meeting of the House Tea Party Caucus.
With reason, Feldman describes the controversy as “suspiciously partisan.” Common Cause, the campaign-finance reform group, is straining to argue that Scalia and Thomas were so beholden to Koch to require recusal from the case, Citizens United v. Federal Election Commission (2010), that freed Koch’s company and others to spend freely on political activities. Scalia’s reported lecture on constitutional interpretation is more problematic, but mainly because it was behind closed doors to an overtly partisan group.
Feldman is not content, however, to knock down the attacks on Scalia and Thomas. With a selective retelling of history, Feldman argues that Supreme Court justices have committed politics ever since Chief Justice John Marshall, who served as secretary of state for the last month of John Adams’ presidency after having assumed his position on the court. Charles Evans Hughes accepted the Republican nomination for president in 1916 while still serving as an associate justice. And Robert Jackson took a year’s leave in 1945-46 to serve as chief prosecutor at the Nuremberg war crimes trials.
The brief overlap of Marshall’s dual roles is de minimis and, in any event, unthinkable in present day. So too, given the realities of contemporary campaign finance, a justice’s active quest for political office without leaving the bench. As for Jackson, he was praised for his opening and closing statements at the Nuremberg trials, but faulted for intemperance and weak cross-examination. And the court was left to decide cases for a full term with eight members and, after Chief Justice Harlan Fiske Stone’s death in late April 1946, only seven surely at some loss.
As a clerk to the reclusive justice David H. Souter, Feldman saw the monastic ideal at its extreme. He is right to think without saying so that the court could benefit from justices who come not from lower courts but from the political world. But he is wrong to excuse Chief Justice Fred Vinson for giving President Harry Truman a green light to seize the steel mills and wrong to lightly pass over Abe Fortas’s poor judgment in advising LBJ while on the bench.
Feldman is especially wrong to argue for politically engaged justices with the court split as never before between Republican- and Democratic-appointed blocs. The current division pitting five conservative Republicans against four liberal Democrats feeds the cynical view that Supreme Court cases are in the end just politics. The justices can see and interact with the world in many venues: judicial conferences, college campuses, civic clubs, and so forth. But with every partisan appearance, a justice puts at risk his or her reputation as well as the court’s commitment to equal justice for all.