This is the second of a two-part series on the Supreme Court and the military. Part I focused on the military history of the Court's future justices. Part II deals with the disconnect between the current Court and our military personnel.
In an age of where the justices of the United States Supreme Court routinely peddle books on television, speak
abroad at lavish events, and lecture at ideological venues, it feels odd that there is such a
gulf -- both physical and metaphysical --
between the justices and the American service member. And yet there it is. It's not just that the
Court is bereft of war veterans for the first time since 1936, a clear disconnect in this age of our so-called "endless war," it's that the justices, for as long as anyone can remember, don't ever seem to ever publicly honor the sacrifice of military service. (See Update Below)
When was the last time you saw video or still photographs of a justice visiting a military hospital to cheer or chat with wounded soldiers? The answer is: You haven't. Evidently, it's something that just isn't done. Why not? No one seems to know. Ever since the Court was first convened, future justices have served in active military duty. One of the greatest, Oliver Wendell Holmes, was wounded three times in the Civil War. One of the least famous, Harold Burton, was awarded a Purple Heart in World War I. Yet the current Court never seems to publicly acknowledge those sacrifices by honoring today's service members.
To say so is not to suggest that the current justices are unpatriotic or that they aren't profoundly proud of our troops. Not at all. The justices' service to their country -- at a salary far less than they would command in private practice -- is just some of the proof of their national duty. And there is nothing to suggest that they don't privately support wounded troops (e.g., see comment below about Justice Thomas). When I asked why these past few days, when I reached out to military officials and court observers, the tone of incredulity in the answers was profound. Not only has it not been done, but no one seems to have thought about it.
Purists suggest it's perhaps because the justices are ever-sensitive about interjecting themselves into politics. And I can practically hear Justice Antonin Scalia himself asking, "Why would a young soldier want to hear from an old fogey like me?" But the truth is that there no law or policy which precludes the justices from making such visits -- and they would almost certainly be wildly popular with the troops. My question comes down to this: If Justice Scalia can go to Capitol Hill to talk to lawmakers, as he did last year, why in the world can't he go to the VA Medical Center to talk with our wounded troops?
A NEW GILDED AGE
By coincidence, the day after I began researching this series, I came across an instant classic of a piece of reporting about Chief Justice John Roberts and his wife, Jane, who is also an accomplished attorney. The piece focused on Jane Roberts, her causes, and her strong connections to Washington's social community. I'll leave it to others to contemplate how the tone of such reporting about government elites plays these days in the rest of America. But there were two paragraphs in the piece that I found particularly compelling and relevant here:
Black-tie evenings in Washington have long been standard fare for Supreme Court justices. Scalia, Alito, and Stephen Breyer in particular are known as men about town. "In the old days, they would have been known as the 'dining-out justices,'" said Kevin Chaffee, a veteran journalist and expert on Washington's political and social power structures.
As for their spouses, "Martha-Ann Alito goes out quite a bit, and she's charming," said Chaffee. Indeed, Justice Alito and his wife have been photographed recently at galas for the Washington National Opera, the Shakespeare Theatre Company at Sidney Harman Hall, the National Italian American Foundation, and the Holy See.
I don't begrudge Justice Alito his opera. I know that Justices Scalia and Ruth Bader Ginsburg enjoy it, too. I don't care how much time Justice Anthony Kennedy spends in Salzburg or how chatty Justice Stephen Breyer was with Larry King. We tolerate the fact that our justices speak and write and appear on cable television in part because they almost always reveal to us in those rare public moments that they are not as cloistered as their fiercest critics believe them to be. In these moments, whether you like them or not, whether you can stand their rulings or not, they are humanized. Made real.
What I wanted to know, when I started asking around about the Supreme Court and the military, was whether the justices ever spend any of their other time, official or otherwise, visiting wounded troops. In 2011, for example, Justice Alito blew off President Obama's State of the Union speech to go to Hawaii. No big deal. But while he was there would it have killed the former Army Reservist to visit the USO? And is it reasonable today to propose a new social compact with our justices? For each book tour they do, for each foreign teaching gig they take, they have to visit a military hospital on their way?