SUBMITTED BY LAWRENCE RAFFERTY, GUEST BLOGGER
I recently read that U.S. Rep. Michele Bachmann is coordinating a crash course on the Constitution for the new members that will be joining the House in January. I was a little surprised that one of the guest speakers for that course will be Supreme Court Justice Antonin Scalia. While it is not unusual for Supreme Court Justices to interact with members of Congress, it disturbs me that Justice Scalia will be meeting with the Tea Party Caucus behind closed doors. These very same members of the Tea Party Caucus have very definite ideas and opinions on current national issues that may reach the Supreme Court in the near future. This recent article in Bloomberg suggests that Justice Scalia’s presentation will “…focus on separation of powers, said Kathy Arberg, the Supreme Court’s spokeswoman.” http://www.bloomberg.com/news/2010-12-15/scalia-will-deliver-speech-before-bachmann-s-tea-party-caucus.html Doesn’t Justice Scalia have a history of aligning himself with partisan parties who might have an interest in current or future cases in front of the Court? A certain duck hunting excursion in 2004 with former Vice President Dick Cheney comes to mind. http://articles.sfgate.com/2004-02-06/news/17413116_1_justice-scalia-energy-task-force-contacts-with-high-level-executive Will the Tea Party Caucus members suggest to Scalia that the Health Care reform legislation is unconstitutional, knowing that this contentious issue will likely reach the Supreme Court? Unfortunately, we won’t know because this meeting will be private and behind closed doors. Do we really want members of the Judiciary meeting in private sessions with members of any one political party? Wouldn’t a bipartisan meeting or lecture be more appropriate? At least one former member of the Bush administration seems to think so.
Professor Richard Painter, the former Chief Ethics Lawyer for President George W. Bush and law professor at the University of Minnesota, seems to think that Scalia is stepping out-of-bounds. “The question is whether Justices should also meet with Members of Congress behind closed doors in business meetings intended for discussion of the work of the judiciary. I think not. Ex-parte communications with a Justice about pending cases or issues to be decided in pending cases are a problem if coming from any source. Ex-parte communications are a serious problem if coming from the executive or legislative branch of government. An independent judiciary should make up its mind about cases free of pressure from Congress or the President. I recall that several of the Justices were offended that the President would criticize a past holding of the Court in a televised State of the Union address before Congress. They felt that the independence of the judiciary was being undermined by this public chastisement. Why then would any Justice voluntarily go up to the Hill to hear what Members of Congress have to say in a closed-door meeting about their judicial philosophy or anything else relevant to their work on the Court ,and possibly to hear views on particular cases? Or is judicial independence yet another concept that turns on political perspective rather than principle?” http://www.legalethicsforum.com/blog/2010/12/justice-scalia-takes-some-tea.html What do you think?