Applying History's Lens to Supreme Ethics

From judicial ethics to ideological pairings, the work and conduct of the Supreme Court get a lot of attention in a smorgasboard of news media articles and commentary following the end of the court’s term.

In one of the most intriguing pieces, Jeff Shesol brings a historic lens to simmering controversy over some of the extrajudicial activity of the court, in a New York Times commentary entitled “Should Justices Keep Their Opinions to Themselves?” He is author of “Supreme Power: Franklin Roosevelt vs. The Supreme Court.”

“Surely there is nothing new or unnatural about justices holding political views and seeking the company of others who share them,” Shesol writes. At the same time, “there are few, if any, precedents” for Justice Clarence Thomas’s and Justice Antonin Scalia’s involvement with fund-raising efforts by the conservative Koch brothers, he says.  Shesol then zeroes in on public trust in the courts:

“The public’s faith in the rule of law depends, to no small degree, on the idea that judges try, as best they can, to maintain a judicial temperament — that they keep a certain distance from public and even private events that appear, in the truest sense of the word, partisan, and that they maintain an open mind.”

“It’s not that we need justices without political impulses; we need justices who can keep them in check.”

Shesol predicts that “proposals to curb the court,” and dealing with recusal or ethics codes, won’t happen. He explains: “As Justice Harlan Fiske Stone wrote in the 1930s, sternly rebuking some of his brethren, ‘the only check upon our own exercise of power is our own sense of self-restraint.’”

Shesol concludes by looking ahead. Next time, he writes, the court “may find fewer Americans on its side if its members allow themselves to be perceived, in Justice Breyer’s words, as ‘junior-varsity politicians’ who possess, but do not merit, the last word.”

Meanwhile a Washington Post article looks at the four youngest justices. It is entitled, “Justices who will shape Supreme Court’s future are matching pairs.”

“Kagan Gives New Life to Court’s Liberal Wing,” declares a Wall Street Journal headline. “How Sonia Sotomayor Became the Public Face of the Supreme Court’s Liberal Wing” is the topic of a New Republic article.

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