POLITICIZE THE COURT:

The Justice Who Came to Dinner (JEFFREY ROSEN, 2/01/04, NY Times Magazine)

After Watergate, the culture of Washington became more adversarial, further changing the relationship among the justices, the president, the press and the public. In the 1970's, for example, the justices and the clerks were routinely seen eating in the Supreme Court's public cafeteria. By the 1990's, however, the clerks were walled off in a separate room, and the justices retreated upstairs to their private dining room.

Socializing among justices, executive officials and litigants continues, but on increasingly wary terms. Consider the unspoken rules of one of Washington's most exclusive poker games, which has included Chief Justice William H. Rehnquist, Justice Scalia, and lawyers like Robert S. Bennett and Leonard Garment, the former Nixon counselor. Mr. Garment said that during the months he had a case pending before the court, he stayed away from the game. He lamented the growing concern for appearances, and insisted there is nothing wrong with litigants socializing with justices as long as they don't discuss pending cases. "If we can't trust justices to behave appropriately, and force them to live in a bubble," Mr. Garment said, "we can forget about the ability of a court appropriately to reflect a changing culture."

Reflecting a changing culture does not appear to be one of Justice Scalia's legal priorities. Nonetheless, it's true that the growing isolation between justices and politicians may have contributed to the increasingly strong assertions of judicial supremacy by Justice Scalia and his colleagues, in which they treat the president and Congress as unruly schoolchildren rather than coordinate branches of government.

From this perspective, the most salient aspect of Justice Scalia's socializing isn't the fact that he went duck hunting with the vice president, where it's hard to imagine that they discussed details of pending cases. In a polarized city, it's more significant that all the justices have fewer and fewer opportunities for informal encounters with any officials - especially those with views different from their own.

Not only is the lack of contact with other members of government a problem but the absence of an experienced politician on the Court is a real weakness which should be remedied next time there's an opening. John Ashcroft and Dick Thornburgh would both be apt choices, especially for Chief.

Posted by Orrin Judd at February 1, 2004 5:18 PM