Not Your Father's Court

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
The Supreme Court's decisions this past term speak for themselves. As they have every term over the past few decades, the Justices once again sided in most cases with employers over employees, with big business over consumers, and with the government over individuals. The few exceptions -- the Guantanamo Bay detainee case, for example, or the child -- rape capital case or the Second Amendment case-merely prove the rule.

Trends? At essence, they all point in the same direction as they did last year at this time. Chief Justice John G. Roberts Jr.'s oft-cited dream of more jurisprudential harmony from the Justices (in the form of more unanimous decisions) remains just that; a fantasy that is no closer to coming true in 2008 than it was in 1998 or 1988. This is true even though Justice John Paul Stevens on a few occasions voted more "conservatively" than some observers thought he would. Big deal.

The death penalty? The Court still stubbornly retains it -- this past term by validating creepy lethal injection protocols in Kentucky -- even as a majority of its Justices found ways to ensure it does not exponentially expand. Election law? The Court in a case out of Indiana made it harder, not easier to vote in presidential elections. And, boy, Exxon Mobil and other big companies sure did well when the Court limited punitive damages arising out of the Valdez catastrophe in Alaska nearly a decade ago. That these cases were decided this way doesn't really tell us anything we didn't already know about this Court and its current cast of characters.

So if you really want insight into what this Court is all about what you really need to do is absorb the interview given by Justice Antonin Scalia to the (London) Daily Telegraph, a mainline British daily. Still shilling his new book, Justice Scalia went out of his way to blame Al Gore for the 2000 Florida recount fiasco. "I didn't bring (the recount fight) into the courts," Justice Scalia told the Telegraph. "Mr. Gore brought it into the courts. So if you don't like the courts getting involved talk to Mr. Gore."

And he didn't stop with that head-scratcher, either. Justice Scalia then added, "And you know bear in mind that the issue wasn't whether or not the election was going to be decided by a court or not. It was whether it was going to be decided by the Florida court or by the United States Supreme Court, for a federal election," before telling the reporter that any partisan decisions during the recount came from the Florida Supreme Court and not the U.S. Supreme Court.

What an insult to the tens of thousands of Floridians whose votes did not count in November 2000. What a slap in the face to the Florida Supreme Court, which after all was interpreting state law when it rendered its various Gore-friendly rulings. And what a cynical, offensive way to look at the art and science of judging. Either Justice Scalia is astonishingly blind to the arrogance and partisanship of his comments -- eight years later and on the eve of another election -- or he is keenly aware of it and simply doesn't care. I tend to believe the latter but, either way, it is conduct unbecoming a sitting judge anywhere.

Such provocative comments from a sitting Justice would be disturbing enough if they were a random, isolated incident. But they are not. Justice Scalia has made an out-of-court career commenting upon "live" topics that have or could come before him. So, too, to a far lesser extent, have Justices Clarence Thomas and Anthony Kennedy and Stephen Breyer. These are not your grandfather's Justices. They aren't even your father's Justices. They are bold and sassy-judge-philosophers who don't like to pass up a chance to share with the world their view of it -- even when that view skews our wishful perceptions of them as neutral arbiters of the rule of law.

This is the trend made more pronounced this past term. It is the trend that makes the Roberts Court, circa 2008, the disappointment it has become. The chattering class has talked for a decade -- ever since the Monica Lewinsky affair and the impeachment of President Bill Clinton -- about the politicization of the law. And, indeed, this partisanship is as alive on the Court as it has ever been. As alive as it was on the right in the 1910s and 1920s and on the left in the 1950s and 1960s. The slew of 5-4 decisions on the most controversial cases of the term proves that.

But it's not the staid partisanship of those earlier eras. It's the in-your-face, capture-the-news cycle, age-of-the-Internet partisanship that marks our current media world. Justice Scalia apparently wants to be a rock star; wants to shock his viewers and listeners and readers. Unchained from any concerns about public opinion, unaccountable to any electorate, he realizes that not only can he rule whichever way he wants to as a Justice he also can pretty much say anything he wants to when he takes off his robe. And the more he does this, the more comfortable other Justices, on the left and the right, may feel the urge or even the right to do the same. This is not a good thing.

The best thing the Justices can do this summer vacation, then, is to go away and (with all due respect) shut up. No more speeches in which they announce their views on relevant topics. No more book tours selling self-serving books. No more contemplating the grand legal themes of our times or defending against all evidence their past mistakes (i.e., Bush v. Gore). Don't go away angry, Justices. Just go away. And when you come back on the first Monday in October try to keep the snarkiness to yourselves. We don't want a Court made up of Justices who act like talk-radio hosts. Lord knows we already have enough of them in this country.
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