Our loquacious justices

TODAY, THE U.S. Supreme Court will assemble to hear one of the most important cases of the term: Hamdan vs. Rumsfeld, which will test President Bush's claim of near-absolute authority over detainees in the war on terror. But most of the attention will be fixed on the fourth seat from the right and its occupant, Associate Justice Antonin Scalia, who, in a clear breach of judicial decorum, if not judicial ethics, recently divulged his views on the issues in the case before oral arguments had even begun.

Scalia's comments, delivered in Switzerland earlier this month, were only the latest example of Supreme Court justices talking out of school. In fact, the justices have been entering the public debate recently in a way that would have been viewed as scandalous just a couple of decades ago.

Abandoning a long-held tradition of avoiding public speeches (other than the occasional mundane graduation address), justices have been holding forth on every subject from the power of the political right to "morality legislation" to the war on terror. The model of the reclusive jurist is being supplanted by a type of judicial Tony Robbins, who regularly boosts his "constituency" on the left or the right with energizing speeches.

More than any other justice, Scalia has helped forge this new model of the celebrity justice. He has long been the enfant terrible of the court: precocious, unpredictable, brilliant. But his apparent inability to restrain himself in public forums has caused no end of problems.

In 1996, he denounced theories of a constitutional right to die when there were two cases on that very question pending before the court. In 2003, he appeared at a "religious freedom rally" sponsored by the Knights of Columbus in Virginia to denounce attacks on the Pledge of Allegiance when a challenge to the pledge was pending before the court. Rather than wait for the oral arguments, Scalia pumped up the audience by declaring that the effort to remove God from the Pledge of Allegiance was "contrary to our whole tradition." On that occasion, Scalia had to recuse himself.

The latest public proclamation from Scalia is even worse. In Switzerland, Scalia responded to a question about the claims of detainees like Salim Ahmed Hamdan by saying "give me a break." Hamdan -- Osama bin Laden's former driver -- is arguing that the federal courts should have jurisdiction over his case, but Scalia dismissed the premise of his claims and emphasized that "if he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield, and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean, it's crazy."