Russ Feingold cuts through the “not prejudging cases” farce:
FEINGOLD: In Hamdi there were four different opinions…We know where all eight other members of the court stand on these opinions — in their opinions. They either wrote or joined one of them. Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court…Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision..Why shouldn’t the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?
ROBERTS: Well, because each of the other eight justices came to their views in those cases through the judicial process…You’re now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views…
FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?
ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice…
FEINGOLD: I understand your view. I think it’s narrow. I have the experience of having one of my bills go for the Supreme Court and I know I didn’t have, as we say in Wisconsin, a snowball’s chance with a couple of the justices because of what they had ruled previously. But I didn’t think that made the process in any way tainted.
So first, John Roberts’ argument is that he can’t discuss past cases because it would be unfair to future litigants to go before a judge who was on the record about issues related to the case. Then, when confronted with the obvious but under-discussed point that every current Justice is on the record about prior cases by nature of having voted on them, his argument transforms into a new one: It’s unfair to future litigants to have to go before a judge who had publicly stated opinions about issues related to the case and hadn’t had them forged by the process of conferring with other justices. This argument is equally specious – certainly, judges views may change with time (though in some cases we may question how genuine the change of heart is), and no one asks an apointee to pledge not to listen to new viewpoints, but if the only people with well-reasoned, prudent opinions on Supreme Court decisions are Supreme Court Justices, then there isn’t much point in having judicial confirmation hearings at all. The idea that Supreme Court Justices, by nature of having to debate with their colleagues and write opinions, have earned some qualitatively different right to their judgments doesn’t seem in keeping with the humility which Roberts claims as the hallmark of his judicial philosophy. And if announcing positions on prior cases without having been on the Court for them is imprudent, his comments about Lochner and Brown are as much so as his comments on Hamdi. The real pattern in what he does and doesn’t discuss it seems, it which cases the public as a whole is likely to be reassured by his positions on and which ones he’d be safer keeping his mouth shut about.