SECTION: Section 4; Page 1; Column 1; Week in Review Desk
HEADLINE: The Nation: Social Court;
The Justice Who Came to Dinner

BYLINE:  By JEFFREY ROSEN; Jeffrey Rosen, who teaches law at George Washington University, is the author of a new book, "The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age."

BODY:
AFTER Justice Antonin Scalia went duck hunting with Vice President Dick Cheney recently, he reported that the hunting was "lousy." Nonetheless, his trip has provoked a chorus of denunciation from Democratic politicians and editorial writers, who insist that Justice Scalia should recuse himself from a pending Supreme Court case in which Mr. Cheney is being sued by two public interest groups who want him to turn over the records of his energy task force.

When Democratic senators insisted that Justice Scalia had compromised his impartiality by hunting with Mr. Cheney on a trip sponsored by an energy company, the justice dismissed their concerns. "Social contacts with high-level executive branch officials (including cabinet officers) have never been thought improper for judges who may have before them cases in which those people are involved in their official capacity, as opposed to their personal capacity," Justice Scalia wrote in a statement to The Los Angeles Times.

Speaking very broadly, Justice Scalia may be correct. Throughout the 20th century, justices did indeed socialize with presidents and other high executive officials who had cases before them. These relationships reflected a complicated dance, as newly appointed justices often navigated the transition from political underling to social equal. Some justices had the character and independence to manage the transition well; others did not and their reputations were ruined as a result.

But during the postwar era, social contacts between justices and the executive grew increasingly cautious as the Supreme Court's bold interventions into politics helped to make Washington more polarized and more legalized at the same time. Though the growing social isolation of the court from the White House may not be ideal for the justices, the president or the country, Justice Scalia is asking that he and his colleagues be judged by the standards of a vanishing era.

In the 20th century, the model for male bonding between justices and presidents may be the cruise that Justice Harlan Fiske Stone took with President-elect Herbert Hoover. Afterward, "Stone became part of a small group called the medicine-ball cabinet, which would take this heavy ball and throw it around before breakfast," said William E. Leuchtenberg, a professor at the University of North Carolina who specializes in presidential history. "One time, Stone knocked Hoover down, hit him in the face."

In the same spirit, Franklin D. Roosevelt was fond of taking tropical fishing trips with his attorney general, Robert H. Jackson. (Roosevelt mixed the cocktails and won at poker.) After Roosevelt promoted Jackson to the court in 1941, Jackson continued to socialize with the president, for example, joining him at an intimate dinner on F.D.R.'s wedding anniversary in 1945. But Roosevelt never asked Jackson about pending cases, and after Jackson ruled against the administration in a case involving a naval mutiny, Roosevelt confessed that he agreed with the justice. "By respecting the boundaries between their public and private roles, Roosevelt and Jackson sustained a genuine friendship," said John Q. Barrett, Jackson's biographer, who teaches law at St. John's University.

Roosevelt's relationships with Justices Louis D. Brandeis, Felix Frankfurter and William O. Douglas were more complicated. As Bruce Allen Murphy describes in "The Brandeis-Frankfurter Connection," Justice Brandeis paid Frankfurter, then a Harvard professor, to be his liaison to Roosevelt and others, using him as a conduit to propose legislation. Brandeis also held afternoon teas at his Washington apartment where he invited White House officials to educate him about the workings of the government. Yet these indirect social contacts didn't prevent Brandeis from striking down parts of the New Deal.

Justices Frankfurter and Douglas were even closer to Roosevelt. Frankfurter ambushed the president with tufts of flattery, while Douglas played such an "interesting game of poker," in F.D.R.'s words, that the president seemed to prefer him to Harry S. Truman as a running mate in 1944. "These social contacts were appropriate because Frankfurter and Douglas never offered advice unless the president asked, and he never tried to influence their decisions," said David Ginsburg, a lawyer who served as an aide to Roosevelt, Frankfurter and Douglas.

Far less successful was the relationship between Truman and his poker buddy Fred M. Vinson whom he promoted from treasury secretary to chief justice. In one of the biggest embarrassments of his presidency, Truman seized the steel mills to avert a strike, based on what appeared to have been Vinson's assurances that the court would support him. When Vinson was unable to deliver the votes, the court ruled against Truman 6 to 3, in a decision written by Justice Hugo L. Black. As a peace offering, Justice Black invited the fuming president to his Alexandria, Va., home to join all the justices for a party. Although initially wary, Truman eventually turned to Black and exclaimed, "Hugo, I don't much care for your law, but, by golly, this bourbon is good!"

An even more compromised presidential crony on the court was Abe Fortas, whose nomination to be chief justice was defeated after it emerged that he had routinely given Lyndon B. Johnson political advice about domestic and international politics as a sitting justice. During the Nixon era, Chief Justice Warren E. Burger showed up at the White House without an appointment to congratulate Nixon fulsomely on the bombing of Cambodia; Nixon reciprocated by telling Burger that he might have to run for president in 1972 if Nixon's health gave out. But their mutual flattery didn't prevent Burger from ruling against Nixon in the Watergate tapes case.

After Watergate, the culture of Washington became more adversarial, further changing the relationship among the justices, the president, the press and the public. In the 1970's, for example, the justices and the clerks were routinely seen eating in the Supreme Court's public cafeteria. By the 1990's, however, the clerks were walled off in a separate room, and the justices retreated upstairs to their private dining room.

Socializing among justices, executive officials and litigants continues, but on increasingly wary terms. Consider the unspoken rules of one of Washington's most exclusive poker games, which has included Chief Justice William H. Rehnquist, Justice Scalia, and lawyers like Robert S. Bennett and Leonard Garment, the former Nixon counselor. Mr. Garment said that during the months he had a case pending before the court, he stayed away from the game. He lamented the growing concern for appearances, and insisted there is nothing wrong with litigants socializing with justices as long as they don't discuss pending cases. "If we can't trust justices to behave appropriately, and force them to live in a bubble," Mr. Garment said, "we can forget about the ability of a court appropriately to reflect a changing culture."

Reflecting a changing culture does not appear to be one of Justice Scalia's legal priorities. Nonetheless, it's true that the growing isolation between justices and politicians may have contributed to the increasingly strong assertions of judicial supremacy by Justice Scalia and his colleagues, in which they treat the president and Congress as unruly schoolchildren rather than coordinate branches of government.

From this perspective, the most salient aspect of Justice Scalia's socializing isn't the fact that he went duck hunting with the vice president, where it's hard to imagine that they discussed details of pending cases. In a polarized city, it's more significant that all the justices have fewer and fewer opportunities for informal encounters with any officials -- especially those with views different from their own.