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Justices should not enlist in culture wars

I am not a fan of hidden microphone ambushes. It’s sneaky and dishonest. The kind of ambush that activist Lauren Windsor pulled off at the recent Supreme Court Historical Society dinner was particularly unseemly because she posed as a conservative activist type and attempted to lead the witnesses — Supreme Court justices and spouses — into saying something clickbaity. Windsor, a progressive, is taking a leaf from James O’Keefe’s playbook.

Windsor struck out with Chief Justice John Roberts. The country was living through “tumultuous” times, she suggested, and wondered what the court could do to repair the polarization. Roberts was dubious. “The first thing … is to tell me when the non-tumultuous time has been … you look at what the court was doing in the 1960s, what the court was doing during the New Deal, what the court was doing after Dred Scott … “

Windsor persisted, asking whether the justice thinks it’s part of the court’s role to “guide us back toward a more moral path?” The chief justice’s response was pitch perfect: “No. The role of the court is deciding cases. If I start, would you want to put me in charge of guiding us toward a more moral path? That’s for the people we elect. That’s not for lawyers.” Finally, Roberts denied that we are a “Christian nation,” noting that Jewish and Muslim Americans would beg to differ.

Roberts demonstrated historical perspective, modesty about the court’s role (and his own), and clear impatience with the idea that the court should serve as some sort of Sanhedrin for American society.

Windsor used the same tactics with Justice Samuel Alito and got a different result. She began by praising him as a “fighter” and then proposed that as a Catholic herself, she doesn’t know if we can “really negotiate with the left in a way that needs to happen for the polarization to end,” and that “it’s a matter of like, winning.” He agreed. “One side or the other is going to win. I don’t know.”

Every public figure, for better or worse, needs to assume that nothing they say outside their own homes is truly private. Just ask Barack “I’ll have more flexibility after the election” Obama or Mitt “47 percent” Romney about open mics and surreptitious recordings.

At the same time, as Roberts demonstrated, public officials — especially judges — won’t get into trouble if they maintain their composure and remember not to enlist in the culture wars.

The most important thing for a justice to stress is process. We won’t agree on everything, but as long as we obey the law and work out compromises in our existing institutions, we remain strong. As long as everyone has a chance to express their views, vote their conscience and have their rights respected, we’ll be OK. Talk of existential crises is dangerous.

We live in a diverse, free and often raucous country. Justices of the Supreme Court and their families cannot be expected to be untouched by passion or partisanship. But they can model respect for differing views and commitment to compromise.

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