What Do the Justices Think They Are Doing?

Article excerpt

I.

Despite their prominence, the justices of the United States Supreme Court are mysterious, almost secretive, figures. True, during Senate confirmation hearings nominees answer wide-ranging questioning about their backgrounds, attitudes, and philosophies. But in recent decades these hearings have been elaborately orchestrated, and in any event (except in the instance of a nomination to be Chief Justice) they cannot provide information about the experience of sitting on the Court. Once on the Court, the justices, of course, give public speeches, but most are unrevealing. The members of the Court do gather for conferences at which they discuss pending cases, but these are kept strictly secret. The young law clerks with whom the justices work extensively are sworn to confidentiality. Little of general interest can be learned from questioning during oral arguments, since the interchanges center on the legal issues of a particular case.

The consequence is that the modern Court's often surprising behavior seems largely inexplicable. Why are justices who earnestly claim to be committed to judicial restraint so willing to use power expansively? Why do they feel competent to settle difficult, deeply contested disputes that clearly involve many extra-legal considerations? Indeed, when they settle such disputes, to what extent do they believe that they are applying law rather than their own political or moral preferences? And why in modern times have justices - both conservative and liberal - treated disagreement with their constitutional interpretations as illegitimate and dangerous?

Such questions are, needless to say, addressed by observers and even by the justices. But most of the books and articles and speeches that deal with these questions convert them into matters of legal and interpretive philosophy. Thus, Justices Breyer and Scalia have both written books arguing about the proper place of original intent in constitutional law. Such debates are useful but limited. They address what the justices believe should guide them, but they do not reveal what the justices are experiencing or actually doing.

Right under our noses, however, there is a resource for seeing how the justices understand themselves. This resource, the written opinions used to explain the Court's decisions, are at one level about the law rather than the justices and so are not often consulted for this purpose. Jurists, however, do reveal something of themselves in their legal opinions. In some exceptional decisions, such as Planned Parenthood v. Casey (where the Court re-affirmed the basic ruling in Roe v. Wade), the justices discuss themselves directly. More commonly, they write impersonally, but even this self-effacement is telling.

The impersonality of most opinions is mostly taken for granted despite the fact that today most observers recognize that the justices are intensely interested in the constitutional cases they decide. This is so because they Uve in the society that their decisions do much to shape. They may have children or grandchildren who attend public schools that, because of establishment clause decisions, are bare of religious observances. A relative or a friend may be a homosexual whose life has been changed by the privacy decisions that protect their sexual conduct. Some of the justices may hope that at some point assisted suicide might be an option for themselves or a relative.

The consequences of case outcomes involve more subtle or remote interests as well. A decision may advantage the political party responsible for the justice's elevation to the Court or a cause that has long interested the justice. It may implement some moral precept favored by the justice's religion. Patterns of decision making may lead to fame or obloquy or obscurity.

Nevertheless, for the most part the justices write their opinions as if their own interests and beliefs have nothing to do with their decisions. This silence is significant. …