USA: Justices Buck Tradition, Get Personal

Supreme Court Justice Antonin Scalia's unusual public declaration of independence from his Roman Catholic church on the death penalty reflects the vexing conflicts that justices confront as they wrestle with the law and their personal beliefs.

Justices in the past have hinted at internal conflicts mainly in written court opinions. Some have spoken more candidly about their families, religion, and legal conflicts - with mixed reactions.

"Every time we open our mouths, we come close to compromising what we do," Justice Clarence Thomas told Virginia attorneys in 2000, after announcing he was limiting his speaking engagements.

Scalia talked extensively during public appearances this week in Washington and last month in Chicago about his disagreement with his church's statements against the death penalty.

He said judges who follow the philosophy that capital punishment is morally wrong should resign.

Other justices have also talked openly on that subject and others.

-"After 20 years on (the) high court, I have to acknowledge that serious questions are being raised about whether the death penalty is being fairly administered in this country," Justice Sandra Day O'Connor said in Minnesota last summer.

-Justice Ruth Bader Ginsburg brought up similar concerns in a speech last April. "I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution applications in which the defendant was well represented at trial."

-Justice David H. Souter told Congress in 1996 that "the day you see a camera come into our courtroom, it's going to roll over my dead body."

- Scalia told a group in Mississippi in 1996 that Christians should assert their faith even if intellectuals dismiss them as simpleminded.

"They're human," said Jonathan Macey, a law professor at Cornell University. "To the extent that they own up to the fact that they have tugs on their viewpoints from nonlegal sources, I think it's healthy."

Abe Bonowitz, director of the Florida-based Citizens United for Alternatives to the Death Penalty, said "it's smarter for them to keep quiet, then people are kept wondering. People on both sides of the issue can have some hope."

At the same time, groups like his anxiously seek out tidbits on justices' personal views to help their cause.

"They normally keep their mouths shut because there's no real percentage in it for them," said Douglas McFarland, a professor at Hamline University School of Law. "They don't want to do anything that will detract from the mystique" of the court.

Ken Paulson, executive director of the First Amendment Center, said the public comments generally only mirror justices' written opinions.

"They shouldn't be leading marches. But short of ethical breaches, justice have freedom of speech too. I think that anything that helps to demystify the Supreme Court is positive," Paulson said.

Justices have consistently refused to comment on pending cases, but they will talk about other things.

O'Connor, promoting a new book last month, told NBC's "Dateline" that she and Chief Justice William Rehnquist had dated when they were both attending Stanford law school in the 1950s.

Justice Anthony M. Kennedy launched a democracy program for school children with first lady Laura Bush. He talked about his concerns after Sept. 11. Ginsburg did a town hall meeting with high school students from two states, and also discussed the country's response to terrorism.

Barry W. Lynn, executive director Americans United for Separation of Church and State, said justices seem to be in the public more often and more outspoken. "The dangers in that trend is it may give the appearance that these individuals are not truly neutral," he said. Justices are safer when they stick to opinion writing, he added.

The comments by Scalia, O'Connor and Ginsburg on capital punishment come as the death penalty is being reviewed again at the court. Justices will hear arguments this month in a Texas case that tests the constitutionality of executing the mentally retarded.

Dianne Clements, head of the Texas-based pro-death penalty group Justice for All, said the jurists can influence the public with their comments, but "they have as much right to say what they think as anybody else."