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."