Jeff Shesol Asks, "Should Justices Keep Their Opinions to Themselves?"

Shesol Publishes New York Times OpEd
Jeff Shesol
The New York Times

Should Justices Keep Their Opinions to Themselves?


ARE there really only nine Supreme Court justices?

It seems that everywhere you look, you see one popping up: giving speeches, signing books, leading workshops, posing for pictures at charity functions. This is what law professors call “extrajudicial activity,” and we have seen a spate of it lately, not only during the court’s summer recesses, when justices fly the marble coop, but throughout the term that began last October and ended this week.

“Extrajudicial” is a term that covers most of what judges do when they are not judging. Of course, in the public sphere, there is really no such thing as purely extrajudicial activity for a Supreme Court justice, any more than there is extrapresidential activity for Barack Obama. Virtually everything the nine do and say — whether in robes, suits or leisure wear — has potential bearing on the reputation of the court.

Which helps explain why the justices’ activities have aroused so much controversy during this past term, perhaps more so than in recent years. As much as any string of decisions, this has been a central story line of the term. The complaint — expressed mostly on the left about justices on the right — centers on activities with a strong ideological inflection or an obvious, if unacknowledged, partisan bent.

This, recall, was the term in which Justice Antonin Scalia delivered a tutorial on the Constitution to the House Tea Party caucus; Justice Samuel A. Alito Jr. went to The American Spectator’s annual fund-raising dinner, where he had previously given the keynote speech; and Justices Scalia and Clarence Thomas each drew fire for attending separate meetings hosted by the conservative Koch brothers. Justice Thomas has also been made to defend the political activism of his wife, Virginia, and, in recent weeks, faced questions about his entanglement with Harlan Crow, a benefactor of conservative causes. 

To read the full article, please follow this link to The New York Times.