Time for the Justices To Stop Talking

Our view is that the justices — and justice — would be better served were members of the court to speak only from the bench.

Chip Somodevilla/Getty Images
Justice Samuel Alito at Georgetown University in 2016 at Washington, D.C. Chip Somodevilla/Getty Images

If we were counselor to Chief Justice Roberts — a stretch, to be sure — we would advise the justices to stop talking. The Constitution’s “case and controversy” clause ordains that the justices hear only live disputes brought before them. The same limitation, we hazard, would serve them in their own controversies. At some point, after all, they might need to ignore alleged conflicts and decide their own fates under the rule of necessity.

It’s not that we have any quarrel with what any justice has said. Justice Alito landed a humdinger of a scoop in the Wall Street Journal editorial page, beating the liberal publication ProPublica to its own story. ProPublica earlier disclosed personal gifts and hospitality by real estate magnate Harlan Crow to his friend Justice Clarence Thomas. This time it’s an Alaskan fishing trip in which Justice Alito joined investor Paul Singer.*

What Justice Alito took to the Journal to argue is the propriety of the excursion, whose details he did not previously disclose. There was an empty seat on Mr. Singer’s plane, he noted, and the investor’s name did not appear on an array of cases on which Justice Alito sat, even as several of them involved entities connected to Mr. Singer. The justice, though, argues that “recusal would not have been required or appropriate.”

We don’t disagree with that. We have oft marked the justices’ “duty to sit” for a court with no substitute jurists, and we have not seen a particle of evidence to suggest that there is corruption on this court, not with Justices Alito, Thomas, or any others. The real story here is a campaign to topple conservative justices in the wake of Dobbs. Our view is that the justices — and justice — would be better served were members of the court to speak only from the bench.

We marked this point a couple of weeks ago, when Justice Alito and Justice Elena Kagan recused themselves in a case. Justice Kagan not only recused herself, but cited, of all things, the Code of Conduct for United States Judges, which justices can consult but by which they are not bound. When  Justice Alito’s turn came, he left it to the unsigned record to note simply that he “took no part in the consideration or decision.”

Which brings us back to the Chief Justice. The “Statement on Ethics Principles and Practices” he issued in response to heat from Senate Democrats — they summoned him to appear on Capitol Hill  — fanned the flames rather than calmed the waters. It’s a lesson. The best course for the justices is to talk from the bench of the Supreme Court — the only platform reserved for those who, constitutionally, get the last word. 

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* A former investor in and director of The New York Sun.


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