The Supreme Court: Behavior off the Bench

If he has done nothing else, Abe Fortas has surely shattered the standard notion that a Supreme Court Justice leads a sequestered, monastic life that takes him from bench to book-lined study and back again. After admitting that he had continued to counsel Lyndon Johnson while serving on the court, Fortas cited several precedents to the Senate committee considering his nomination as Chief Justice. Among others, Presidents Washington, Jackson, Lincoln, Coolidge, Hoover and Roosevelt all had valued advisers on the court, Fortas recalled.

He could also have pointed to his own colleagues. William Douglas played poker with Roosevelt and advised Kennedy on a wide range of matters, including the Vienna meeting with Khrushchev and the Cuban missile crisis. Chief Justice Earl Warren served President Johnson by leaving the bench to head the investigation of John Kennedy’s assassination. Thurgood Marshall joined Vice President Humphrey’s supporting entourage on a good-will tour of Africa last winter.

The mere fact that many Justices did and do engage in various pursuits outside the court does not mean that such activities fail to raise problems. In fact, Fortas’ admission of presidential troubleshooting has only served to heighten discussion in legal circles of the propriety involved in out-of-court activities.

Above the Struggle. The basic concern is to preserve the high court’s impartiality. “So long as a Justice, or a President for that matter, is especially careful not to get involved with questions that might become judicial questions,” says Law Professor Jesse Choper of the University of California at Berkeley, “then I don’t think there’s anything improper about this at all.” Harvard Law School’s Arthur Sutherland agrees: “If it’s something that might come before a judge, then it’s his obligation to keep his mouth shut.”

There is virtually nothing that is absolutely guaranteed not to come before the court. Fortas, for instance, has frequently discussed Viet Nam with the President and is a known backer of Administration policy. Given those circumstances, Professor William Bishin of the University of Southern California argues that “Fortas couldn’t possibly give unbiased consideration to the rights of anti-Viet Nam war demonstrators. If the question of the constitutionality of the war should come before the court, Fortas would not be able to rule upon it from an impartial position.” Making the same point another way, U.C.L.A. Politics Professor David Farrelly wonders “how impartial the court could have been in 1952 when it had to decide on the constitutionality of the President’s seizure of the steel mills, if the Justices had been poker-playing companions of Truman.”

Dealing with a political or international problem, of course, does not necessarily make a man prejudiced; many judges who have never directly concerned themselves with such matters might be far more prejudiced, depending upon their personality, character and intellect. However, even if impartiality is in fact maintained, there is the problem of the outward appearance of prejudice. “The danger is that the Justices, by speaking out on issues off the bench, become identified with one side of the issue,” says the University of Chicago’s Philip Kurland. “Justices are above the daily struggle—or should be,” adds Yale Law School’s Alexander Bickel. “They are supposed to be unassailable, not for Presidents to have a reservoir of unassailable men to draw on, but to be able to exercise their own judicial function.”

Bickel is not doctrinaire in his stand, however. “A lot of judges are ornaments of society,” he points out. “Why be deprived of their wisdom? A reasonable position is one that allows the Justices to be living, breathing human beings.” Kurland’s colleague, Harry Kalven Jr., agrees that “it is better, on balance, to let them speak and to trust their judgments than to impose silence on them.” Even at that, Kalven can understand why the bulk of his colleagues would prefer to see more silence and less action from the Justices. “Every time a Justice acts outside his primary role, he risks undermining the mystique, the dignity of and—most important—the public’s respect for the highest tribunal.” The Supreme Court, says Kalven, “has an enormously useful image of being Olympian. No one wants that image destroyed.”

Emotional Words. Fortas, for one, agrees wholeheartedly. Speaking last week in Philadelphia at a meeting of the American Trial Lawyers Association, he celebrated the importance of judicial integrity. “If the courts of this nation should ever yield to the assaults of any group, or to the pressure of officeholders in the legislative or executive branch,” he said, “our system of constitutional government could not survive.” If the court should not yield to pressure, added Fortas, neither should pressure be put on the court, especially by the other branches of government. In an obvious allusion to the increasingly steamy congressional criticism of the Warren court, he said that judges must be “totally free, so far as mortal man can be, to reach their decisions without fear of being called to account in any other place for their vote or their opinions.”

The emotion of his words clearly indicated that he did not think that his friendship with the President had been compromising. He refused to comment last week on the future of his relationship to Johnson. But in spite of the current uproar, he does intend to continue speaking off the bench whenever he thinks it is necessary or important to do so.