The op-ed by HLS Professor Noah Feldman, “Sometimes, Justice Can Play Politics” appeared in the February 12, 2011 edition of The New York Times. A constitutional law scholar, Feldman is the author of the recently published book “Scorpions: The Battles and Triumphs of F.D.R.’s Great Supreme Court Justices.” 

Sometimes, Justice Can Play Politics

by Noah Feldman

What is it about those robes? They are only flimsy bits of wools, enlivened in a few cases by some very European lace at the collar. Yet the moment our Supreme Court justices put them on, a segment of the concerned public imagines that they have become priests consecrated to the sacred order of the Constitution.

Recently, Justice Antonin Scalia has been criticized for meeting with a group of (gulp) conservative members of Congress and accused of participating in an event organized by the conservative billionaire Charles Koch. Justice Clarence Thomas has been excoriated because his wife, Virginia, last year took a leading role in organizing Liberty Central, a Tea Party offshoot that received anonymous, First Amendment-protected donations (she has since stepped down). He also belatedly amended 13 years’ worth of disclosure reports to include details of his wife’s employment.

Justices are required to disclose their income sources and those of their spouses. But the core of the criticisms against Justices Thomas and Scalia has nothing to do with judicial ethics. The attack is driven by the imagined ideal of the cloistered monk-justice, innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience.

It was not ever thus. John Marshall, undoubtedly the greatest chief justice ever, spent his first month on the court as the secretary of state of the United States. That’s right, the chief justice and the secretary of state were the same person — an arrangement permitted by the Constitution, which only prohibits members of Congress from holding other offices. Marshall’s most famous decision — Marbury v. Madison, which established the principle of judicial review — arose from Marshall’s own failure as secretary of state to deliver the obscure William Marbury his commission as justice of the peace in the waning hours of the Adams administration. No one cared. … read the full article on »