Judging What Justices Do Off the Bench Russell R. Wheeler Editor’s Note: A similar version of this article appearedas a review essay in the Michigan Law Review, Vol. 81. pp. 931-945, 1983. The editors askedthe authorto revise the reviewforpublica tion in thisjournal. Throughout its history, members of the Supreme Court have engaged in various politically significant activities in addition to deciding cases and explaining those decisions. My goal in this brief article is to consider the arguments supporting and discouraging such extrajudicial behavior, with reference to spe cific instances of such behavior throughout the Court’s history. Briefly, what are the various kinds of extrajudicial activityofinterestto usas students of the Supreme Court? First are duties that Justices perform ex officio-such as the Chief Justice’s service, pursuant to statute, as a member of the Board ofthe Smithsonian Institution1 or as the presiding officer of the Judicial Confer ence oftheUnitedStates2or ofthe Board ofthe Federal Judicial Center.3 Somewhat akin to these specific ex officio designations are statu tory requirementsthat a commission include a certain number of federal judges, without spe cifically designating the judges; Congress has required that the United States Sentencing Commission include at least three federaljudges,4 a requirement that the Supreme Court has said is consistent with the Constitution? Second, Justices have accepted per sonal appointments to official government posts, usually temporary ones. Chief Justice Earl Warren, for example, accepted President Johnson’s request that he chairthe commission that investigated the assassinationofPresident Kennedy. Third, Justices have engaged in all kinds of informal political and governmental activity, such as providing advice to Presidents and members of Congress, to candidates for those offices, and, in general, participating in the political affairs ofthe day. Bruce Murphy’s 1982 book documenting the off-the-bench and out-of-the-limelightlobbying by Justices Brandeis and Frankfurter6shocked casual observers by revealing more extensive activity than most people assumed is the case. OnemightfirstaskwhyJusticesshould engage in extrajudicial activities. There are several conceivablebenefits from various kinds of extrajudicial behavior, benefits that I sum marize here and then discuss in more detail. First, the role ofjudges in political society may give them unique attributes to bring to other aspects of public policy. At a different level, they bring the special knowledge and perspec tive of those who have “been there” to debates over how our judicial institutions should be administered and who should be judges. In addition,judges have likely developed perspec tives and some degree of political acumen be fore their appointments that could be put to extrajudicial service. And, by a similar token, an occasional extrajudicial role might maintain the breadth of a judge’s perspectives and in form the judicial mind. To many, these statements do nothing but illuminate the threats that extrajudicial activity poses to thejudicialfunction. That activitymay, 60 JOURNAL 1990 By statute, the ChiefJustice ofthe United States is Chairman ofthe Board of the Federal Judicial Center. Onjanuary 24,1969 members ofthe first Board ofthe Federal Judicial Center posed for this photograph: (standing, left to right): Judge Wade McCree; Judge Harold Tyler; Ernest C. Friesen, Jr., Director ofthe Administrative Office; (seated, left to right) Justice Tom Clark, Director (as Director of the Center, he was not a member ofthe Board); ChiefJustice Earl Warren, Chairman; Judge James Carter; and Judge Edward Deritt. by example, deprive judges of the time and energy they need to decide cases fairly and explain their decisions clearly. Extrajudicial contact with a matter may inhibit the impartial consideration of that matter in the context of litigation. Similarly, the desire to stay in the graces of a President who could bestow the favor of an extrajudicial activity might prevent their considering other matters impartially. Finally, regardless of whether an extrajudicial activity affects judicial behavior, it may create doubt — an ambiguity — in the minds of those who must have confidence that judges will be fair, those without whose confidence the judi cial fiat stands in danger of disrespect. I In Support of Extrajudicial Activities Ajudication, especially constitutional ajudication, requires judges to participate in political society in a special way, applying fun damental norms to resolve controversial fact situations. This experience, building onjudges’ pre-judicial experiences, arguably creates a unique political...