The anecdotes were interesting, particularly that Justice John Marshall, who gave us the seminal Marbury v. Madison establishing the primacy of the Supreme Court in determining the constitutionality of laws, was simultaneously the Secretary of State for the first month of his tenure.

It was not ever thus. John Marshall, undoubtedly the greatest chief justice ever, spent his first month on the court as the secretary of state of the United States. That’s right, the chief justice and the secretary of state were the same person — an arrangement permitted by the Constitution, which only prohibits members of Congress from holding other offices. Marshall’s most famous decision — Marbury v. Madison, which established the principle of judicial review — arose from Marshall’s own failure as secretary of state to deliver the obscure William Marbury his commission as justice of the peace in the waning hours of the Adams administration. No one cared.

But Noah Feldman’s op-ed in the New York Times, which seizes on such upon the medieval influence of robed monks to the justices who played poker with presidents (Robert Jackson), asserts the obvious and then takes a blind leap into oblivion.

It is absurd for conservatives to criticize the cosmopolitan forums where judges from around the world compare notes. And it is absurd for liberals to criticize the conservative justices for associating with people who share or reinforce their views. The justices are human — and the more we let them be human, the better job they will do. Let the unthinkable be said! If the medieval vestments are making people think the justices should be monks, then maybe, just maybe, we should to do away with those robes.

But of course they’re human.  Of course they have beliefs.  And nobody suspected they holed themselves up in their rooms when they weren’t on the bench, cloistered from society and its myriad influences.  How that leads to the conclusion that “the more we let them be human, the better job they will do,” however, remains unclear.

Disconnected from any other aspect of his argument, Feldman states that Supreme Court Justices are too “isolated” from the rest of society, leading to their making “isolated” decisions.

The disengagement from public life that followed has had real costs. Isolated justices make isolated decisions. It is difficult to imagine justices who drank regularly with presidents deciding that a lawsuit against a sitting executive could go forward while he was in office, or imagining that the suit would not take up much of the president’s time. Yet that is precisely what the court did by a 9-to-0 vote in the 1997 case of Clinton v. Jones. The court’s mistaken practical judgment opened the door to President Bill Clinton’s testimony about Monica Lewinsky and the resulting impeachment that preoccupied the government for more than two years as Osama bin Laden laid his plans.

Does Feldman really believe that the absurd notion that Bill Clinton’s administration wouldn’t be, oh, “busy” dealing with the penumbras of Monica Lewinsky’s blue dress was due to their lack of political engagement?  Hey, they’re allowed to read the Times in chambers.  The error of judgment there, and if Feldman is paying attention, in a plethora of criminal cases where the notion of New Professionalism in policing informs their decisions, isn’t because they don’t have access to the same information as the rest of us.

Noah Feldman asserts that if we let Supreme Court Justice indulge in their politics like anyone else, because they are human, you know, they will somehow manifest a connection to the rest of society that will make their decisions more meaningful, real and effective.  And two plus two equals banana.

First the flaw: If justices were given free reign to openly become advocates for political positions, then we would have no reason to expect them to do otherwise.  They would hold firm to politicized positions, which would immediately become their justification for appointment, and would reflect nothing more than the party with the clout and opportunity to load the court with its adherents.  It would be like Congress, except with life tenure.

Of course, it might well be argued that this is what we have already, although it’s kept somewhat under cover to avoid the flagrant appearance of impropriety.  Nobody suspects that appointments ignore the justices political views, even though they proclaims impartiality before the Senate by mouthing the words on the script. 

While it’s somewhat true, and more true in certain cases such as Justices Alito and Thomas, it’s not nearly as true as most of us suspect.  Associate Justice Antonin Scalia, for all the flak he takes, has been on the right side of some of the most pro-defendant decisions around, authoring Crawford for example.  While the left hates him dearly, he’s added greatly to trial fairness. 

By stripping our preconceived biases for the justices, the truth is that most haven’t voted as predictably along political lines as we believe.  It may be more a matter of judicial philosophy than politics, assuming the two are separable, but the outcomes show that we take our heroes where we find them.  I’m still waiting for a decent decision out of Justice Alito too, but hey, no one promised that every justice would eventually get something right.

The better solution to address Feldman’s beef isn’t to allow rank politics to permeate the Supreme Court, but to appoint people to the court who reflect the experience of real people in the real world.  When the universe of potential justices comes only from the most isolated of the elite, whether the ivory tower, the halls of justice (the Department of Justice, that is) or the Whitest of White Shoe firms, any complaint that they lack a sense of how life works on the streets has nothing to do with their wearing black robes.

Feldman would have done better to join the  Trench  Lawyer  Movement if he wants to expose the court to the real world.  Of course, Feldman, a professor at Harvard Law School born shortly after I purchased my first pair of earth shoes, may not be aware that more real lawyers, the ones connected to that public life he reads about in the Ivory Tower, can be found in the hallways of courthouses than anywhere else.

And having enjoyed a seat at the longest running floating poker game on the Long Island Railroad, any president inclined to let a trench lawyer cum justice into his poker game better know how to play cards.  We’re hard to bluff.