Is the Supreme Court too powerful?
As Congress prepares to probe Supreme Court nominee John Roberts's leanings on this or that constitutional question, it should not overlook a larger concern about the Supreme Court as an institution. The court is in desperate need of reform; it has become increasingly isolated, imperious and opaque.
This is no accident. It follows largely from the assumption, nurtured by the media and embraced by the justices, that they hold "lifetime" appointments. But it is time to rethink this assumption. And there is some reason for optimism that Roberts himself might agree and make a unique personal contribution to bringing about overdue change.
The power of Supreme Court justices today is epic in scale. The cases they hear involve the most difficult and contentious questions before the nation. An alphabetical list would begin with abortion and proceed through campaign finance, church-state relations, euthanasia, pornography, presidential selection and voting rights. And once appointed and confirmed, the members of the court who engage these momentous issues are able to do so for as long as they please.
Yet the power this gives them is not matched by humility, nor leavened by sensitivity to the democratic values of accountability and transparency. Consider:
Long after Congress opened its chambers to the electronic media, the Supreme Court continues to refuse to allow television, still cameras and tape recorders to record arguments and other proceedings. The justices limit their public appearances and, even more so, media interviews and exchanges. Justice Antonin Scalia has notoriously refused to allow his public speeches to be filmed, photographed or tape recorded, and last year, marshals actually wrestled a recorder away from a reporter at one of his public appearances. The public, meanwhile, is kept at a safe distance from the court: Visitors wishing to see oral arguments are ushered in and out of the court in brief shifts. These...