The Volokh Conspiracy
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Does A Supreme Court Justice Have To Move To The Swamp And "Burn The Boats"?
I've long thought it would be positive if Justices maintained their primary residences outside of D.C.
CBS News published another excerpt of Justice Barrett's book. She describes the difficult decision to move her family from South Bend. Barrett explains the process of selling her old home was like Alexander the Great's adage about "burning the boats."
I really loved my job on the Seventh Circuit and settled into the rhythm of hearing arguments and writing opinions. But after a few years, life took another turn: the White House counsel, who runs the judicial selection process for the president, invited me on behalf of President Trump to interview for a seat on the United States Supreme Court. Though I was deeply honored, I thought hard about whether to go forward. I knew that if I was chosen, both the confirmation process and the work of serving on the Court would require sacrifices, particularly from my family. Unlike my job on the Seventh Circuit, this one would require a move to Washington, D.C. We had a good life, wonderful friends, and close family in South Bend. We were attached to our old Prairie-style home, which was a short walk to campus for tailgates during football season—a fall family high- light. The move would mean changes for Jesse's career and new schools for the children. We knew that public criticism was sure to come. And if I was nominated and confirmed, there would be a long-term loss of privacy for all of us. Public service was appealing, but the changes to our personal life were not. . . .
Jesse and I had a very brief time to make one of the biggest decisions in our marriage. His position was full support on one condition: if we did it, we had to "burn the boats." The phrase comes from a military strategy used by Alexander the Great, who, after landing on the shores of enemy territory, ordered his men to burn the ships they had come in. With the option of exit gone, there was no choice but to forge ahead, no matter the challenge. Likewise for us. There would be difficulties in store, some we could anticipate and others we couldn't. Jesse wisely thought that it would be unsustainable to face the difficulties—whether in the confirmation process or beyond—if we gave ourselves the option to look back, wishing that we could unwind what we had done. There would be no second-guessing and no turning back to our comfortable life in South Bend.
Justice Barrett has alluded to this decision in her past speeches. That fact that she so wrestled with this choice, and made it with her family, reinforces how devoted she is to her family.
When President Trump released his original Supreme Court short list, I celebrated the fact that there was no names from Washington, D.C. And when Trump picked Gorsuch for his first seat, and Barrett for his third seat, I was quite pleased we got Justices from what Justice Scalia called "the vast expanse in-between."
There is, of course, a flip side to this dynamic. A person who is acculturated in the swamp understands how it works--no one is truly your friend, and people only use you to the extent that you can advance their agendas. A person who is acculturated outside the swamp, and is then transplanted to the swamp, may not understand how that dynamic works. In other words, a person reared in flyover country is more susceptible to the worst forces of the Capital District.
One way to immunize yourself to those forces, of course, is to spend as little time there as necessary. Due to the unique nature of the Supreme Court's calendar, I don't think it is even necessary to move. If my math is right, a Justice only has to be in Court about 20 weeks or so per year.
The Supreme Court generally has no in-person activities during the months of July, August, and September. At the end of September there is the long conference, and two weeks of oral argument. There are two weeks of oral argument in November and two weeks of argument in early December. Thanksgiving and Christmas break are safe. Arguments resume the second and third weeks in January. Most of February is free, and there are about four weeks of argument in February into March. There are usually two weeks of argument at the end of April. There are no arguments in May, though there are weekly conferences. June also has no arguments, but there are weekly conferences, and hand-downs.
In the abstract, a Justice could easily commute for this job, and still spend the vast majority of the calendar at home with their family. Indeed, members of Congress usually maintain their primary residences at home, and commute on weekends. The Supreme Court calendar is far more conducive to commuting.
There are, of course, objections. First, what about cost? Wouldn't it be expensive to fly back and forth, and maintain a separate residence in the District of Columbia? No. The Justice wouldn't need to buy a large home in the D.C. area. Many members of Congress keep a bedroom in their offices. I don't think it would be hard to convert part of a Supreme Court justice's chambers into a living quarter. Morever, I would wager that a year of direct flights between D.C. and a home city would be far less than the cost of mortgage payments for a home in the Beltway. If a Justice followed this approach, they wouldn't need a multi-million dollar book deal to buy a home.
Second, what about the Justice's absence from the building? My understand is that Justice Stevens lived most of the year at his beach home in Florida, and flew up for oral arguments. He communicated with his law clerks by electronic means. As things stand now, I think some Justices see their law clerks far less than average people might assume. Some of the Justices maintain very busy travel schedules, and may not even be in the building when oral arguments or conferences are not scheduled. Indeed, there might be some value in keeping one or more clerk in remote chambers outside of the District of Columbia. There can be more time to focus and fewer distractions. Maybe some clerks will only want the experience of being at First Street. There are eight other Justices to apply to.
Third, wouldn't a commuting Justice be less able to interact with his or her colleagues? Yes, and I see this as a feature, not a bug. As a general rule, when the Justices make deals and compromises, they invariably move the Court to the left rather than the right. Show me a case where a "deal" led to some more conservative result. At least on the current Court, I think isolationism would help originalism. Cases can be discussed at conference.
The biggest benefit, by far, is that the Justice would spend less time in the awful environment that is Washington, D.C. You can't attend a cocktail party in Georgetown if you are attending a potluck dinner. Your children will not have to be exposed to all the types of protestors and other negative influences. Perhaps most importantly, you will never forget what matters in the real world.
As I've often said, an Article III commission is life tenure, not a life sentence. One doesn't have to burn the boats.
I have considered this thought experiment before Barrett's burning boat point. Maybe the next Supreme Court justice will publicly vow to keep his or her family parked at home, and he commute only when necessary.
