Hey, Justices: Stop Talking, Start Working
Justice Clarence Thomas is in a full (and heretofore unheard of) publicity mode. The quietest member of the Supreme Court is scheduled to appear on 60 Minutes on Sunday, Sept. 30, to plug his new book and has also agreed to sit for an interview or two with legal reporters.
Meanwhile, Justice John Paul Stevens is the subject of a cover story in this Sunday's New York Times magazine. And Chief Justice John G. Roberts Jr. made appearances at the University of Montana and Syracuse University this month, praising "independent" judges.
At this rate, we'll be seeing Justice Antonin Scalia doing David Letterman's Top Ten, Justice Ruth Bader Ginsburg critiquing the red carpet with Joan Rivers and Justice Anthony Kennedy appearing on "America's Got Talent."
Our justices are loose upon popular culture -- and I'm not crazy about it.
Look, I'll admit that I find it intriguing that Justice Stevens "telecommutes" from his home in Florida, as Jeffrey Rosen notes in the Times magazine piece. And I concede that the many intellectual and historical contradictions of Justice Thomas make for fascinating reading on a cold winter night. And I hope that the chief justice remembers his spiel about judicial independence when he has to decide (in the next few months) whether and to what extent the court should halt the expansive march of presidential power of the Bush era.
But, before I'm comfortable allowing the justices to go around on the speaking circuit, I'd like them to do their job, which is to select and then decide the cases handed to them through the system. They are supposed to clarify ambiguous legal doctrines, offer certainty to businesses and individuals alike, and, most importantly, act as a check upon the excesses of the other two branches. And, on this score, their most fundamental task, the justices aren't up to snuff. They are all hooky and no school, all go and no show, too much sizzle and not enough steak.
Despite promises to the contrary by Chief Justice Roberts during his confirmation hearing, the court is hearing fewer and fewer cases. As the Times' Supreme Court reporter Linda Greenhouse noted last December: "The court has taken about 40 percent fewer cases so far this term than last. It now faces noticeable gaps in its calendar for late winter and early spring. The December shortfall is the result of a pipeline empty of cases granted last term and carried over to this one. The number of cases the court decided with signed opinions last term, 69, was the lowest since 1953 and fewer than half the number the court was deciding as recently as the mid-1980s."
This term isn't starting out much better. There are only 25 or so cases on the docket so far-- and only five cases scheduled for oral argument in November. The justices on Monday hold what court insiders call the "long conference", during which they will consider an additional 26 cases for review in the upcoming term. They can also add cases to the docket throughout the term.
But unless the dynamic drastically changes within that conference room, the Supreme Court again will be less involved in referreeing disputes that touch upon the lives of virtually every citizen. This is really a shame. And it certainly makes it harder for me to look at these preening justices with much more than old-fashioned disdain. They already have the cushiest jobs in government; they should at least have the good sense to hear at least 100 cases each term-- before they are allowed go out on their book tours.
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