SCOTUS needs its poker face

Last Sunday, Lady Gaga got tongues wagging yet again when she arrived at the Grammys stuffed inside an egg-shaped vessel.

The voice behind 2008’s No. 1 hit “Poker Face” has an incomparable ability to attract attention through her outlandish fashion choices, grand entrances and controversial off-stage antics. You can’t read her poker face, but it’s impossible to avoid reading about her in the media. Fortunately, she chose an occupation where musical talent and public persona are often intertwined. She’s a pop star, not a Supreme Court justice.

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But what happens when members of the nation’s top court, the nine men and women serving at the highest level of our third branch of government, make news that extends beyond the legal opinions they issue? 

This week, advocacy group Common Cause raised questions about an appearance that Justice Clarence Thomas made at a political conference for well-heeled conservatives in Palm Springs, Calif., in 2008. The event was organized by right-wing activists David and Charles Koch, and Thomas’s trip was paid for by the conservative Federalist Society. Thomas, whom The New York Times reports hasn’t spoken a single word during court arguments in five years, appears to have been more verbally generous at that right-wing retreat than he is during his day job.

He isn’t the only member of the current court to have come under scrutiny for rubbing shoulders with those sporting a well-known political agenda. In 2003, Justice Antonin Scalia raised eyebrows when he joined then-Vice President Dick Cheney on a duck-hunting trip at a private camp in Louisiana. The expedition took place just weeks after the high court had agreed to hear the vice president’s appeal of lawsuits related to the Bush administration’s handling of its energy task force. Scalia denied that the event might call his impartiality on that case into question.

For his part, Scalia seems just as comfortable speaking his mind outside the court’s chambers as within. In 2006, when a reporter asked him about critics who questioned his impartiality on other matters, Scalia replied with a flick of the hand under his chin that many interpreted as an obscene gesture. It seems like a reaction better suited to a rock star being harassed by paparazzi than a Supreme Court justice being questioned by a reporter. 

Unfortunately, brash behavior isn’t unique to Scalia. During last year’s State of the Union address, an event that Supreme Court members traditionally witness with steely, poker-faced objectivity, Justice Samuel Alito couldn’t contain himself. He under-the-breath expression of disgust when the president took issue with a recent Supreme Court decision. Alito’s reaction startled many veteran Supreme Court reporters, and led to several days of media attention about whether Washington’s polarized political climate was creeping into a branch of government that historically prided itself on a dispassionate view of the issues that came before it. Perhaps fueling that perception, Alito chose to skip the State of the Union altogether this year.

To be sure, politics has always been a part of the Supreme Court. With justices appointed by the president and confirmed by the Senate, members of the high court are by definition linked to politicians who run campaigns and pursue partisan agendas. One of the highest-profile Supreme Court cases of the past few decades was 2000’s Bush v. Gore, a sharply divided decision that polarized a nation and determined the outcome of a presidential election. Last year’s Citizens United decision, in which the Supreme Court empowered big businesses to spend unlimited amounts of money in elections, was widely seen as favoring the corporate-friendly Republican Party.

What is troubling is that recent controversies have helped erode a critically important perception — that members of the high court, when not discharging their constitutional duty to interpret the law, behave outside the courtroom in a way that maintains the dignity of the decisions they make inside it. These individuals shouldn’t generate media buzz. Their public words and actions should never break the judicial poker face.

Let the tabloids go gaga over someone else.

Del Cecato is a partner at AKPD Message and Media, the political consulting firm founded by David Axelrod in 1985. He served as media adviser and admaker for Obama for America and Obama-Biden 2008.



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