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.” 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.   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?”   What do you think?


  1. For what its worth,now’

    Former Justices Stevens & O’Connor Reject ‘Citizens United’ Ruling

    Former Supreme Court Justices John Paul Stevens and Sandra Day O’Connor recently appeared to reach a similar conclusion about the majority decision reached by their former colleagues in Citizens United vs. Federal Elections Committee earlier this year: it was a “mistake.

  2. rafflaw:

    They put you in the mind of the player who’s been pulled from the game and forced to sit on the sidelines and gets a better view of the impact their actions could have on the outcome.

  3. I’m with Bob, Esq. on this issue. I have found myself increasingly disturbed by Justice Scalia’s gross insensitivity to the ethical implications of his public conduct. It is not a question of whether he was in fact influenced by his duck hunting trip with Vice Pres. Cheney. Nor does it matter what his actual political beliefs may be when addressing the propriety of his appearances before overtly political groups. In his position, appearances matter, and if Justice Scalia is insulted by the suggestion that his judicial integrity may be impaired through these exchanges, so be it. I have previously expressed my view that service on the Supreme Court is intended to be a lonely task.

    The revelation that Justice Scalia may be providing a primer on the Constitution to clueless members of Congress is only the most recent instance of poor ethical judgment. What’s next? Advisory opinions to the House Intelligence Committee? Will Rep. Bachmann propose that he “take a look at” prospective legislation before she votes on it? Perhaps she can ask him to assist in drafting the constitutional authorization clauses that some Republicans have suggested should preface future legislation.

    Justice Scalia can go back to teaching, or take a job as legislative counsel, but he cannot do either of those things and retain his position on the bench. It’s time someone told him so.

  4. eniobob,
    you could be right. Mike A, the appearance of impropriety is enough for any non-partisan judge to take a step back before acting in a manner that will, at the least, make people wonder if he/she is acting in the interest of one litigant over another.

  5. If there ever was a “misnomer”

    “Rep.** Michele Bachmann,** the Minnesota Republican who helped create a tea party caucus of House members is getting a seat on the House **Intelligence Committee.**”

  6. “All this to say, I’m extremely dubious that there is any causal relationship between Justice Scalia’s political activities (or the political activities of Justice Thomas’s wife) and the way they will end up deciding cases that may come before them.”

    I would say that you are extremely naive on this subject. How come by the way does no one mention that Scalia’ son was working for the law firm of the Bush counsel Olsen in the 2000 case? Impropriety, or the appearance of same, in a judge is unacceptable at any level. Without the ability to believe in an impartial justice system our system fails in the eyes of the public.

  7. Mike Spindell,

    I don’t think I’m being naive. I think I’m being realistic. I would be naive if I thought Justice Scalia was going to support a liberal interpretation of the Constitution if only he were isolated.

    I don’t have any more of a problem with Justice Scalia speaking at an event that is open to all members of the House than I do Justice Kennedy speaking to members of the Bar.

    It’s the meetings that take place without notice that are far more likely to have a sinister intent.

  8. “How come by the way does no one mention that Scalia’ son was working for the law firm of the Bush counsel Olsen in the 2000 case?” (Mike Spindell)


    I had forgotten that “little” fact … thanks for the reminder … it was one of the many things that drove my anger back then.

    Now, having witnessed Scalia’s questionable actions in so many areas over the last 10 years, I, for one, no longer believe in the impartiality of our judicial system but … the only difference between now and then is that my eyes have been opened.

    The impartiality that I believed existed before 2000 could not possibly have been there. The Supreme Court’s action in 2000 was not a coup … it was the natural progression of a well developed degradation already firmly in place.

    We seem to be moving backwards … perhaps we are going to need a new Magna Carta … a rebirth of the law of the land re-establishing protection for the freeman from arbitrary rule.

  9. rafflaw,

    The article said that the meeting was open to all members of the House. For me, that is sufficient to relieve the meeting from being considered to be “behind closed doors”.

  10. BBB,
    I said this before, when someone like Rep. Michele Bachmann says it will be open to all members of the House, I will have to see it to believe it. The Republicans have done nothing but obstruct everything that the Obama Administration and the Dems tried to do so I do not expect Bachmann to “get religion” all of a sudden and become bipartisan.

  11. BBB,

    As a person that has worked in partisan politics, been the victim an victor of the same….A caucus is a meeting of supporters or members of a political party or movement, especially in the United States. What is BI-Partisan about this? Maybe I am missing something….maybe you are….whatever it is…it appears that you want to believe….

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