Litigation

Do Justices? Tensions with Politicians Pose a Risk?

By Peter Hardin

Are contacts between Supreme Court justices and the federal government’s elected branches becoming more politicized — and posing a potential threat to public confidence in impartial courts?

That question is raised and explored in a USA Today article entitled, “Tensions rise between Supreme Court, politicians.” It takes in recent controversies, including President Obama’s stern in-their-face criticism of the high court’s Citizens United ruling a year ago, and Justice Antonin Scalia’s scheduled remarks today to the House Tea Party Caucus today.

Interactions between the justices and the executive and legislative branches have indeed become more politicized, the article asserts, and the following questions are raised about the implications:

“Court scholars say the trend could lead to public doubts about the ability of judges to be impartial and above politics, particularly when highly charged disputes over health care, gay rights and immigration are moving through the judiciary.

“‘It’s important not to overemphasize it because we don’t know where it’s going to lead,’ [University of Pittsburgh law professor Arthur] Hellman says. ‘But the totality could be to reduce the sense that there is something special about the courts, that they are above politics, above commerce, above other sectors of society today.’”

An article in The Hill about tomorrow’s annual speech by the president to the entire Congress was headlined, “Roberts, Alito face touch choice on whether to attend State of the Union.” Reported Fox News, “Supreme Court Justices Could be No-Shows for Obama’s State of the Union Address.” In Slate,  Dahlia Lithwick wrote a commentary entitled, “Should They Stay or Should They Go?”

In advance of Justice Scalia’s scheduled speech today, The Caucus blog of the New York Times wrote:

“Critics ? The New York Times included ? have said the arrangement could raise the specter of collusion between conservatives members of the Court and Congress, and lead to further political polarization of the Court.”

And Jonathan Turley of George Washington Law School said in a Washington Post commentary:

“At best, Scalia’s appearance can be viewed as a pep talk. At worst, it smacks of a political alliance.”

Common Cause, the watchdog group, today criticized Justice Scalia’s decision to address the group. ?The American people expect impartial justice from the Supreme Court,? said Bob Edgar, President and CEO of Common Cause. ?The last thing we need in these divisive times is Supreme Court justices appearing to be allied with a political faction.?

Barbara Perry of the University of Virginia’s Miller School of Public Affairs told USA Today it is hard to spot a diminution in public regard for the judiciary at this time.

“Judges may feel that they are staying out of politics,” she said, “but what they say now can be picked up and spread across the country like a wildfire instantaneously.” She said it is important to maintain public faith in the courts as a neutral decision-maker. “That’s what the court needs to maintain,” she said, “because that’s where it gets its legitimacy, from people’s faith in it.”

Full post as published by The Gavel on January 24, 2011 (boomark / email).