THE DECISION by Supreme Court justices Antonin Scalia, Samuel Alito, and Clarence Thomas to skip President Obama’s State of the Union address has been widely interpreted as payback for Obama’s criticism of the court in last year’s speech. If so, it’s one more step in a worrisome politicization of the court.
The Supreme Court is the guardian of its own integrity. That means staying above politics and maintaining an air of dispassionate consideration of constitutional issues. The court is not an elected body, and shouldn’t function like one. This is especially important because, unlike with an elected body, there are few external constraints on the justices: They set their own rules, and the need for comity on the court largely prevents them from policing each other. Their shared commitment to maintaining judicial decorum is all that binds them.
But that commitment has been fraying. Scalia has made himself an evangelical force in conservative legal circles, and regularly delivers pep talks to the right-wing Federalist Society. His decision to address an event earlier this week organized by GOP Representative Michele Bachmann’s Tea Party Caucus was fairly typical. Though Bachmann sought to defuse tension by inviting some Democrats to the closed-door event, Scalia’s decision to attend, and refusal to back out, further establishes him as a man in the arena, a politico, and serves to put quotation marks around his judicial opinions.
There have been parallel lapses by other justices, principally Ruth Bader Ginsburg, whose decision to allow the NOW Legal Defense and Education Fund to name a lectureship for her, and then to attend the lecture, was unwise. She risked conflating her judicial finding of abortion rights as a matter of constitutional law with the political fights waged by pro-choice advocacy groups. Such an suggestion — even if implicit — is damaging to the court: It suggests that what goes on in judicial chambers is akin to what happens in the voting booth.
Now, the court’s three most conservative justices, all Republican appointees, have chosen to skip the State of the Union address of a Democratic president. Obama is in no position to complain, because his scolding of the court last year over its campaign-finance decision was rude and self-serving. He, too, deserves some blame for politicizing the court. But he’s a politician. The justices may claim, as some have suggested, that skipping the State of the Union is a way of demonstrating their independence, but it isn’t. Showing up isn’t a political gesture; boycotting it is. Chief Justice John Roberts, who had wavered about attending, seems to have realized this and agreed to lead the court contingent. He deserves credit for putting the court’s reputation ahead of his own sense of pique.
After failure of Robert Bork’s Supreme Court bid in 1987, confirmation hearings grew increasingly anguished and may have served to politicize the justices who survived them; having been branded and labeled throughout the confirmation process they perversely choose to advertise their politics on the court — as if snubbing their noses at their critics.
But the nation is best served by a Supreme Court it can trust to be a source of independent judicial review. When justices advertise their politics, even through indirect gestures like skipping speeches, they undermine their position. They should show better judgment.