The American Spectator

My friend Deroy Murdock has a superb piece at NRO taking Chief Justice John Roberts to task for, in effect, spinelessness. (He is kind enough to quote me in it, but that’s beside the point.) 

But there is one half of one paragraph to which I offer very friendly disagreement. Deroy is making the case that there are ways for a justice to push back against outside political pressure. He’s right. But here’s one of his explanations:

He should have written about this for the Wall Street Journal editorial page and other print outlets. He should have developed these themes on Meet the Press and Fox News Sunday. On these topics, he also should have addressed well-respected, high-profile organizations such as the Manhattan Institute, which invited Supreme Court justices Alito and Thomas to deliver the prestigious Wriston Lecture in 2010 and 2008, respectively. Alito’s and Thomas’s observations were well received by appreciative audiences full of national leaders in journalism, academics, philanthropy, and commerce.

I agree with only the second half of those suggestions. There are ways, usually rather veiled, at academic conferences/ think-tank speeches, and the like, in which the justices can make their case in a respectful but very pointed and effective fashion. Example very aptly provided: those Manhattan Institute lectures.

But there are very, very good reasons why justices (or any federal judges) do not pen op-eds for the Wall Street Journal (except perhaps on subjects related to judicial functioning, such as why the high court won’t allow cameras, or something like that). There are even better reasons to refuse to do TV shows such as Meet the Press. Those reasons are all wrapped together under the broad umbrella of judicial integrity. The court is not supposed to be a politicized body. It is not appropriate for judges/justices to appear to be preening for public approval. They should not be put on the spot, like ordinary politicians, to try to defend their decisions in 60-second sound bites. Judicial independence, institutional majesty (and yes, the high court’s sense of majesty is important — not for its own sake, but for the sake of enshrining in the public mind the majesty of the law, writ large), and the perception of the jurists’ immunity to short-term pressure all must be safeguarded. The idea, to apply a quote from Alfred, Lord Tennyson, is to inculcate “Some sense of duty, something of a faith,
Some reverence for the laws ourselves have made.”

But Deroy’s broader point is extremely well taken. To quote from the same Tennyson poem, just two lines later, by seeming to bow to outside pressure, Roberts failed to show “Some civic manhood firm against the crowd.” The result of such failure, Tennyson wrote, could be: “A kingdom topples over with a shriek/Like an old woman, and down rolls the world.”

As Deroy wrote:

Roberts also should have denounced those who not only disagree with SCOTUS’s rulings, but attack it as a body. He should have reminded Americans that the Supreme Court sits atop one of this republic’s three branches of government. The Founding Fathers empowered it to ensure that laws do not overspill the banks established by the Constitution itself. And if the Roberts majority thus rejected Obamacare, then it simply did its job.

I merely suggest that there are ways and forums in which it is appropriate to do this, but that going on Sunday morning shows with David Gregory isn’t one of them.

But do read Deroy’s whole piece. Good stuff!