The Marble Palace Blog: Justices as Speechmakers

Thank you for reading The Marble Palace Blog, which I hope will inform and surprise you about the Supreme Court of the United States. My name is Tony Mauro. I’ve covered the Supreme Court since 1979 and for ALM since 2000. I semiretired in 2019, but I am still fascinated by the high court. I’ll welcome any tips or suggestions for topics to write about. You can reach me at [email protected].

Supreme Court justices rarely give public speeches unless they are on a book tour. But in recent months, Justices Clarence Thomas, Samuel Alito Jr. and Amy Coney Barrett have made headlines with their speeches. Justice Stephen Breyer made notable remarks too, but he was in the book tour category.

Barrett told a Kentucky crowd that the Supreme Court is not “a bunch of partisan hacks.” Breyer said it was “very, very, very wrong” for the court to refuse to block the controversial Texas abortion law. Thomas, speaking at the University of Notre Dame, said, “The [Supreme] court was thought to be the least dangerous branch, and we may have become the most dangerous.” Alito, also speaking at Notre Dame, said it was “rank nonsense” for anyone to think that the high court was issuing orders late at night to avoid the news media.

The flurry of controversial utterances raised eyebrows. “Judges are not speechmakers,” Indiana University Robert H. McKinney School of Law professor Gerard Magliocca told The Indiana Lawyer. “Speechmaking is something that politicians or professors do.”

True enough, but a new article from the Journal of Supreme Court History suggests that speechmaking by Supreme Court justices is nothing new. “Speeches off the bench date to the Jay Administration [from 1769 to 1795],” wrote the article’s author, Robert Whitaker, a Supreme Court and history scholar at Hudson Valley Community College.

Whitaker’s essay focuses mainly on the Warren Court and the justices’ speeches related to Brown v. Board of Education and other current issues such as the Cold War. Felix Frankfurter once counseled his colleagues to “not speak in public about matters of public law and intra-Court affairs,” but Whitaker’s yearslong research into justices’ papers discovered more than 600 speeches given by the Warren Court justices.

I contacted Whitaker and asked him about the large number. “The speeches they gave,” Whitaker said, “were intended in part to defend the court against criticism at a time when I think they saw their institution under great threat through massive resistance [against school desegregation] and court-curbing legislation and other measures.” In his article, he said the speeches “represent political acts.”

Were those talks viewed as inappropriate at the time? “I didn’t see much evidence that it was controversial,” Whitaker said. “In fact, quite the opposite. The justices’ speeches, particularly Earl Warren’s speeches from 1954, his first full year on the court, got significant national press coverage. They were reprinted in full in papers such as the New York Times. They were also broadcast on national radio networks.”

Asked if the speeches by current-day justices echo those of the Warren Court, Whitaker said, “I don’t think it’s facing quite the same degree of threat.” But he added, “I certainly do see some parallels. When the justices perceive the institution to be under attack or when they believe that the court’s image and prestige are at risk, then that’s when they’re more likely to give speeches. It’s not surprising at all.”