In a democracy, judges are supposed to decide cases strictly on their merits. That's especially true of Supreme Court justices. Equally important is that they also act impartially - especially in politically charged cases.
Thankfully, the Supreme Court remains one of the few places in Washington where secrets are actually kept. Justices explain their decisions in daunting detail - frequently disagreeing with one another and filling many pages with expert criticism and analysis. What could be more democratic than that?
But in too many cases the Supreme Court splits along predictable ideological lines (e.g., the 2000 Bush v. Gore decision). And recently, instances of justices taking off their impartial blinders and putting on political glasses in public have been more frequent. That presents cause for concern. A few examples:
Both Justices Antonin Scalia and Ruth Bader Ginsburg have come under fire for their support of politically active groups that have taken an interest in cases pending before the court. For Justice Scalia it was the conservative Urban Family Planning Council; for Ms. Ginsburg it was the National Organization for Women Legal Defense and Education Fund.
On the other hand, Justice Scalia rightly recused himself recently in the Pledge of Allegiance case. He had made public remarks showing he disagreed with the liberal 9th U.S. Circuit Court of Appeals ruling against the use of "under God" in public schools. Many observers thought that had he voted, the high court's decision might have tipped another way.
But Scalia has refused to recuse himself in the still-pending case relating to access to Vice President Dick Cheney's energy task force. His Louisiana duck-hunting trip with Mr. Cheney received lots of criticism, although Scalia says they were never alone together; he was just part of a larger group that went on the trip. Nonetheless, it's the wiser course for justices to avoid even the appearance of a potential conflict of interest.
Last week, Justice Sandra Day O'Connor was criticized for making brief remarks at President Reagan's funeral. In a subsequent interview, she was asked how Reagan might have viewed her votes on landmark civil rights and social issues cases. Though her reply was innocuous enough, placing herself in a position to answer such questions could be read as another sign that the long-held tradition of justices not making political remarks in public is eroding.
Both judges and justices can be more diligent and circumspect as they uphold the concept of judicial neutrality, and be careful not to exhibit biases in public. Both the mystique and the reality of blind justice need to be preserved.