February 1, 2004

Has Justice Scalia “compromised his impartiality" by going duck hunting with Dick Cheney?

Jeffrey Rosen marshalls the evidence of Justices hanging out with Presidents: Harlan Fiske Stone played medicine ball with Herbert Hoover, Robert H. Jackson attended an intimate dinner celebrating FDR’s wedding anniversary, William O. Douglas played poker with FDR, etc.

But that was the old-style “model for male bonding between justices and presidents,” according to Rosen. After Watergate, he writes, "Washington became more adversarial":
Socializing among justices, executive officials and litigants continues, but on increasingly wary terms. Consider the unspoken rules of one of Washington's most exclusive poker games, which has included Chief Justice William H. Rehnquist, Justice Scalia, and lawyers like Robert S. Bennett and Leonard Garment, the former Nixon counselor. Mr. Garment said that during the months he had a case pending before the court, he stayed away from the game. He lamented the growing concern for appearances, and insisted there is nothing wrong with litigants socializing with justices as long as they don't discuss pending cases. "If we can't trust justices to behave appropriately, and force them to live in a bubble," Mr. Garment said, "we can forget about the ability of a court appropriately to reflect a changing culture."

Even though Rosen doesn't think Cheney and Scalia talked about pending cases when they went duck hunting, he worries that justices are too isolated from the political sphere, especially from having informal contacts with politicians of different viewpoints. Rosen makes a big leap here, speculating that "the growing isolation between justices and politicians" is causing the Court to "treat the president and Congress as unruly schoolchildren rather than coordinate branches of government."

Presumably, Rosen is referring to the Court's enforcement of constitutional limits on the commerce power and on the power to legislate to remedy violations of Fourteenth Amendment rights. The NYT reader is expected to assume that these cases he's obliquely referring to are outrageously high-handed. There isn't room in this piece to seriously examine whether perhaps the judicial branch is simply taking its own role seriously, rather than disrespecting the other branches. Even if the Court has reined in other branches in some of these cases, that doesn't mean it has treated them like "unruly schoolchildren." It may simply mean that it has treated them as what they are, human beings engaged in the exercise of vast political power, tempted to undervalue the constitutional limitations that stand in their way.

Stronger doses of real political life don't seem likely to cure that perception.

No comments: