I have long criticized the increasing public appearances of Supreme Court justices who appear to be maintaining a type of popular base of supporters on the left and the right. It is the age of the celebrity justice. Scalia and Sotomayor were in the news this week attracting headlines with commentary on cases or political issues. However, it was the comment of Associate Justice Samuel A. Alito Jr. yesterday that was the most striking. Alito dismissed new polls showing that the Court was at a near record low in respect and approval at some 43 percent. Alito said that it did not bother him at all, which (judging from his past conduct) should not come as much of a surprise.
Clearly the Court should not be striving for popularity. Indeed, lifetime tenure is designed to insulate members of the Court from such popular demands or expectations. However, justices (including Alito) are increasingly seen pandering to outside groups from their ideological camps. Indeed, Alito was widely criticized for attending a conservative fundraiser. Moreover Alito was unrepentant in his unprofessional appearance at a State of the Union address. Then there is the open arrogance shown by some of his colleagues in their public events. That type of conduct clearly undetermined the respect for the Court and should not be dismissed by any member.
I have previously criticized Chief Justice Roberts for repeatedly failing to take the difficult step of chastising the conduct of his colleagues. Indeed, Roberts seemed to support Alito in openly disagreeing with President Obama at the State of the Union.
When asked about the near record disrespect for the Court at the Forum Club of the Palm Beaches and the Palm Beach County Bar Association, he simply replied
“It’s fine if we are not all that popular. There is a reason why the Constitution gives federal judges life tenure. We are supposed to do our jobs without worrying whether our decisions are pleasing to anybody.”
Yes, but their job also should include judicial ethics. Lower court judges routinely refuse to speak at ideological events or discuss issues that are or will be before their courts (and here). The Justices not only violate this core principle of ethics but they insist that they are above the rule of judicial conduct governing other federal judges. Indeed, when they leave the court and sit on lower courts, former justices seem to have a hard time adhering to ethical rules.
As noted in an earlier column, the increasing high-visibility appearances of justices is in stark contrast to their use of the Ginsburg rule to avoid discussing issues at their confirmation hearings. Indeed, Justice Thomas refuses to speak even in oral arguments but regularly appears before conservative groups to throw red meat to his base just as Justice Ginsburg herself has done with liberal groups.
There is a good reason why the Supreme Court is unpopular and it is not entirely due to their rulings. The justices themselves are undermining the integrity and respect for the Court. It is not surprising to see members dismiss the view of the public given their dismissive attitude toward principles of judicial ethics.