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The opinions that the U.S. Supreme Court hands down from the bench are often newsworthy and entertaining enough all by themselves. But in recent months, justices have supplemented the public discourse with insightful speeches and dramatic warnings � even an insulting hand gesture or two. Justices Sandra Day O’Connor and Ruth Bader Ginsburg, embellishing speeches they had delivered in the past, made news by firmly pushing back against Republican criticisms of the judiciary. O’Connor warned of the potential damage to judicial independence, and Ginsburg said the criticism had inspired an Internet death threat that she and O’Connor received in 2005. And the gesture? That was the handiwork, so to speak, of Justice Antonin Scalia. It was made in response to an impertinent question directed by a reporter from the Boston Herald toward Scalia as he came out of a Catholic mass. When the Herald reported Scalia’s gesture to be obscene, the justice issued an angry denial. The photo that subsequently appeared, however, showed a gesture not usually associated with churchgoing or warm wishes. In response to these public utterances and displays, George Washington University law professor Jonathan Turley harrumphed in a Los Angeles Times column that “We were better off when justices spoke primarily to history.” And The New York Times, in an editorial on April 2, violated what is or should be a cardinal rule for journalists: Never criticize a public official for speaking to the public or the press. The Times urged Scalia’s colleagues on the Court to “try to convince Justice Scalia of his duty to take greater care before articulating � or gesticulating � his sentiments in public.” In fact, there is little harm to be had from justices talking and gesturing � well, talking, at least. By mixing it up with the public in ways that make the justices more human and accessible, and less like oracles, they fill in the many blanks of the public’s perception of the judiciary. And, in a powerful way, they also reinforce judicial independence. When they speak their minds, judges show the world that the judiciary is not as fragile a flower as the justices themselves sometimes make it out to be. There are limits, for sure. If a justice’s comments can be read as a sign of bias in a case that is on its way to the Court, recusal is imperative. When Scalia, speaking in Switzerland in March, spoke of hypothetical enemy combatants “shooting at my son” in Iraq � Matthew Scalia was an Army captain there � he certainly raised doubts about how objectively he could rule on Hamdan v. Rumsfeld, a test of the rights of Guant�namo detainees that was about to be argued before him. And if Scalia started importing hand gestures into the courtroom to supplement his lively banter with lawyers arguing before him, it might undermine the Supreme Court’s prized decorum after a while. But apart from those rare or unlikely scenarios, what is the harm in justices giving speeches that go beyond the usual blandishments of Commencement Day oratory? Why must they confine their remarks to praising the rule of law and pressing for salary increases? Leaving the job of defending judicial independence to lawyers seems far less effective than judges doing it themselves. No offense to bar leaders, but it’s safe to say that a feisty speech by a Supreme Court justice is much more newsworthy than the same speech given by the president of the local bar association. Any institution that depends on silence and invisibility for its preservation is in deep trouble, especially in an age of information. The criticism and attention won’t go away just because justices close their mouths and eyes. A good way to defend judicial independence, it would seem, is to exercise it � by explaining boldly what it is that independent judges do, and why their critics are wrong for attacking their opinions. Scalia could lose the vulgar gesture, but neither he nor his colleagues should lose their voices. has covered the Supreme Court for 25 years. A version of this story originally appeared in The American Lawyer, a sibling publication of Corporate Counsel.

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