You ask whether I believe that justices should go around saying what they really think. One thing that’s interesting about the current justices is that they exemplify every possible answer to this question—from Justice Scalia, who tells us what he thinks even when no one asks him (and had to pay the price of recusal for it a few years back when he had publicly dumped on the “under God” challenge to the Pledge of Allegiance as that case was making its way to the court), to Justice Souter, whose wit and eloquence are well-known within the closed circle of those privileged to hear him but who almost never spoke in public during his Supreme Court tenure. Somewhere in the middle is Chief Justice Roberts, who speaks publicly quite often but studiously avoids saying anything of substance. (Justice Stevens, by the way, does his share of public speaking and not infrequently says something quite pointed and interesting—but for some reason or other, his off-the-bench remarks are not often seen as newsworthy.)
A court of nine Scalias would be exhausting, and a court of nine Souters would deprive us of an ongoing sense of a court of nine human beings trying to engage, in one way or another, with the world around them. I actually think Justice Ginsburg has it about right. She doesn’t speak all that often, so when she comments on a pending or recent case, or some other development, you know her remarks are carefully considered and strategically intended. I think she does the court and the public a favor.
So what about S.S. (as she will soon be known inside the court, where justices are routinely referred to by their initials)? The manufactured outrage over her “wise Latina” remark is fatuous—and cynical (not to overuse that word around this breakfast table), given the actual thrust of her remarks at that now-notorious Berkeley speech eight years ago. Anyone who reads the whole speech will have to acknowledge that her real point is that anyone, of whatever background, can make a good judge if they strive constantly, as she says she does, to set aside their own defining characteristics and to be fair and open to all. But no one reads or quotes those paragraphs. I think the response to her various remarks is sexist among other things. After all, didn’t then-Judge Alito talk at his confirmation hearing about his constant awareness of being the son of an Italian immigrant, the implication being that despite Princeton and Yale (sound familiar?), he retained a common touch and understanding of those with less-exalted credentials? Everyone thought that was pretty nice. Do I very much hope that S.S. retains the willingness to tell us how things look from her corner of the bench? I look forward to hearing from her.
I do have a few thoughts on Caperton and some other recent decisions. I’ll save them until I hear from Walter.