JUSTICES ON TV: Laurence Tribe, probably the nation’s top authority on the U.S. Supreme Court, favors television coverage of the court and limited terms.
“It’s really wrong,” he told me in a phone interview, that only a lucky few — such as lawyers, the press, and a limited number of the public — can hear oral arguments on crucial issues that affect people’s lives in so many ways.
But justices have long opposed TV coverage, fearing among other things that some on the court would be “grandstanding.” They’re already grandstanding, said Tribe, who will be speaking at the New Vic on Friday, June 27, at 5 p.m., sponsored by Antioch University, the County Bar Association, and the Legal Aid Foundation. It’s free.
Justices want to preserve their anonymity in public, but that’s not a good enough reason to ban TV, he said.
But the Supreme Court makes its own rules. Tribe, a Harvard Law School professor and author of a new book, Uncertain Justice: The Roberts Court and the Constitution, which he wrote with Joshua Matz, also favors limited terms for justices instead of the present lifetime appointments.
He proposed nonrenewable 18-year terms, staggered so that a president would have two appointments. Court critics have long favored limited terms, in part to assure new blood on the bench. But, Tribe pointed out, such a change would require a constitutional amendment, a very high hurdle and one not easily leaped. The Founding Fathers wrote in the lifetime-appointment provision aimed at preserving their independence and at a time when people didn’t live so long, he said.
Tribe, a close observer of the court for 45 years who had President Obama as a student, was not surprised, as were many, when Chief Justice John Roberts provided the fifth vote to approve Obama’s health plan. Roberts was also Tribe’s student.
Asked about the future of the endangered Roe v. Wade decision legalizing abortion, he said it is being endangered by being chipped away at in the lower court level, and clinics are closing. One issue due to be decided by the court this session deals with buffer zones around clinics, how close anti-abortion activists can approach clients. The country is divided on abortion, Tribe said, and he wouldn’t be surprised to see Roe v. Wade “cut back.”
Tribe disputes that there are an increasing number of 5-4 votes on key issues. Going back over the history of the court, you’d see that this is nothing new, he said. He called the public idea that this is going on is “just so much talk” and “an illusion.”
Currently, however, there’s a public perception that conservative justices, including the chief justice, have won most of the 5-4 battles. But Tribe, a liberal, disputes that the court is moving to the “right.” Terms like left and right are not helpful in describing trends on the court, he said. He calls it “silly talk.”
If decisions were unanimous, “that’s when we should be getting suspicious,” he said.
“The reason I wrote the book is so that we could get a less-stereotyped” understanding of the court, he said.
Asked if two justices were to retire during Obama’s term, giving him new appointments, who he would expect to be named, Tribe said it’s unlikely that the president could get anyone approved in the Senate before he leaves office.
There is speculation that two liberal-moderate justices, Ruth Bader Ginsburg and Stephen Breyer, might retire before Obama leaves office after the 2016 election. If Tribe is right — and who’d bet against him? — it would come as a shock to those who look forward to Obama’s appointment of two liberal-trending justices, rather than wait to see who the next president would name, subject to Senate okay, of course.
Ironically, Tribe himself at one time was being mentioned for appointment by President Clinton. Clinton reportedly also seized upon the idea of naming his wife, Hillary. He supposedly found it “sexy.”
But after President Reagan’s choice for the court, Robert Bork, was rejected by the Senate, Republicans howled that he had been unfairly attacked, giving rise to the phrase “Borked.” Bork was criticized as a right-wing extremist. Tribe testified against him powerfully, and with it went any chance to join the court.
Hillary would have been too controversial in the face of GOP reaction to Bork’s rejection. The vacant seat then went to Anthony Kennedy, who still sits on the court, often a swing vote in close decisions.
Laurence Tribe discusses the Supreme Court’s influence on constitutional law in an Antioch Conversation at the New Vic on Friday, June 27 (33 W. Victoria St., 5pm, free, RSVP to firstname.lastname@example.org).