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?
Bob Esq.,
I don’t disagree that the Court should have dismissed the case based on sua sponte review of justiciability. My point is that even if we hold the Court’s decision as moot for justiciability, there has never been any challenge (that I am aware of) to the constitutionality of the November 14th statutory deadline, which would have still resulted in Bush being declared the winner.
Further, the final decision was in the hands of Congress.
Bob, Esq,
I will have to take a look at the Bugliosi source. I have not seen that.
BBB,
You are entitled to your opinion, however,any appearance of impropriety should be avoided by any judge or any attorney for that matter. Justice Scalia seems to do what he pleases. How can parties in a legal action be assured of equal justice when the judge(s) are seen partying with the other side as in Scalia’s duck hunting excursion with former VP Dick Cheney?
In granting the stay in Bush v. Gore, not only did his Lordship act with the highest amount of scienter whilst using the constitution as a urinal puck per disregarding the separation of powers doctrine, but he also made up his mind who was going to be president before ever reading a brief.
“In yet another piece of incriminating circumstantial evidence, Scalia, in granting Bush’s application for the stay, wrote that “the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner [Bush] has a substantial probability of success.” But Antonin, why would you believe this when neither side had submitted written briefs yet (they were due the following day, Sunday, by 4 pm), nor had there even been oral arguments (set for 11 am on Monday)? It wouldn’t be because you had already made up your mind on what you were determined to do, come hell or high water, would it? Antonin, take it from an experienced prosecutor–you’re as guilty as sin. In my prosecutorial days, I’ve had some worthy opponents. You wouldn’t be one of them. Your guilt is so obvious that if I thought more of you I’d feel constrained to blush for you.” (Vincent Bugliosi, “None Dare Call it Treason”)
The most intellectually dishonest and morally bankrupt Supreme Court Justice this country has ever known.
rafflaw,
“Do you honestly believe that Michele Bachmann and the Tea Party Caucus is going to allow in any Dems or progressives?”
Yes. If they don’t, then there would be reason for concern, but not until.
“The mere fact that the meeting will be private with no press allowed should raise the same concern.”
Some concern; yes. Outrage; no.
Plenty of meetings are held in private, with no press allowed. I don’t have a problem with non-lawmaking meetings, that permit all members to attend, to be held in private, with no press allowed. When the press is in attendance, the Congressmen attending are less likely to be candid.
Would you express the same concern if Justice Breyer was the speaker?
“Why would Pres. Bush’s ethics attorney be so concerned with the closed door meeting aspect?”
Let’s look at what he said;
“Justice Scalia Plans to Deliver Speech Before Bachmann’s Tea Party Caucus
By Greg Stohr and Lisa Lerer – Dec 15, 2010 2:36 PM CT
inShare.More
Business ExchangeBuzz up!DiggPrint Email .Justice Antonin Scalia will speak to U.S. lawmakers at a seminar sponsored by the Tea Party Caucus, a group whose organizer, Representative Michele Bachmann, has urged the courts to strike down the new health-care law.
The speech will be open to all members of Congress, though not to the public or press, said Doug Sachtleben, a spokesman for Bachmann. Scalia, whose “original meaning” approach to the Constitution has made him a star in conservative legal circles, will focus on separation of powers, said Kathy Arberg, the Supreme Court’s spokeswoman.
The announcement that Scalia would deliver the speech evoked mixed reactions from experts on judicial ethics. Although jurists often speak to ideologically driven groups — Scalia regularly appears before both liberal and conservative organizations — one expert said his latest speech would create appearance problems.
“It certainly adds to the politicization of issues surrounding the judiciary,” said Richard Painter, a University of Minnesota law professor who served as President George W. Bush’s chief ethics officer. “When a highly publicized case comes along, it does not help the Supreme Court for the justices to appear aligned one with one party or the other.”
Well, thank you Mr. Obvious.
The fact that “it does not help the Supreme Court” does not eliminate it from reality. Do you have any questions when it comes to what party our current Justices are aligned with? With the exception of Kennedy, I think we could all answer that question.
I found this comment, left by Brad Wendel over at the legal ethics forum, to be well-written and mirror my position.
“Since Richard has freed us from the strictures of commenting on judicial ethics rules or statutes in any particular jurisdiction, and invited us to use our common sense, I will make the following observation as a matter of common sense, not the application of any rule: What is the role of causation in judicial ethics? Does anyone really think that anything that happens behind closed doors on Capitol Hill (whether Justice Scalia is giving a lecture on the constitution or having a back-and-forth discussion with Tea Party members) is going to have the slightest effect on his views about the constitutionality of health care reform, gay marriage, or whatever? Justice Scalia is a conservative and always has been. He’s likely to have a position on many matters, as a matter of both policy and constitutional jurisprudence. Those well-known and well-established views are why he was nominated to sit on the Court in the first place, just as the well-known and well-established views of Ruth Bader Ginsburg are the reasons she was nominated to sit on the Court. Same deal with Judge Reinhardt on the 9th Cir., regarding the Prop 8 litigation in California.
I find it disingenuous at best when liberal critics of the Court get in a tizzy about Justice Scalia or someone else making speeches to conservative groups, as if THAT is the reason they are likely to vote in a particular way in an upcoming case. As I’ve argued in a few papers on judicial ethics, if there is criticism to be leveled, it should be on the basis of the (mis)application of the law by the judge or justice in question. If Scalia can produce a defensible legal basis for his conclusion that, e.g., Prop 8 is not unconstitutional, then that’s all there is to say about the matter. I realize that there’s a lot of weight on the idea of a defensible legal basis, but arguing back and forth about whether a legal justification is sound is what we do all the time — by “we” I mean lawyers, judges, scholars, and other informed observers of the legal system.
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.”
http://www.legalethicsforum.com/blog/2010/12/justice-scalia-takes-some-tea.html
Lord Hypocrite
II. The Prophet of Doom: A Lone Voice on Separation-of-Powers
“What the people care about, what affects them is the Bill of Rights …. That is a profoundly mistaken view …. For the fact is, that it is the structure of the government, its constitution, in the real sense of the word, that ultimately destroys freedom. The Bill of Rights is not more than ink on paper unless … it is addressed to a government which is so constituted that no part of it can obtain excessive power….” (So sayeth Lord Scalia) n140
The separation-of-powers doctrine guarantees the structural integrity necessary for our democratic system of government. Scholars have examined this doctrine from every angle, searching [*243] for its meaning and parameters. n141 Much as these scholars have searched for a meaning, the Supreme Court has zigzagged back and forth, creating a patch-work of decisions in its own interpretation of the doctrine. In I.N.S. v. Chada n142 and Bowsher v. Synar, n143 for example, the Court applied a rigid, formalistic approach to strike down so called “legislative veto” practice and balanced budget legislation. Just a few years later, however, in Morrison v. Olson n144 and Mistretta v. United States, n145 the Court applied a much more functional, flexible methodology in upholding the independent counsel law and the United States Sentencing Commission legislation.
Separation-of-power scholars, like the Court, are largely divided into two groups: formalists and functionalists. Formalists interpret the doctrine to mean that the powers of the government are divided into three “wholly and independent” branches: Congress, the Executive, and the Judiciary. n146 When determining whether the doctrine has been violated, formalists ask whether a branch has acted “within the scope of its authority.” n147 The question is not how far over the line of separation a branch has stepped, but whether it has stepped over at all. If it has, the doctrine has been violated unless the action has been explicitly authorized by the text of the Constitution. n148
Functionalists reject this line-drawing interpretation of the doctrine. Instead, they believe that the question is whether the action has disrupted the balance of power between the branches. n149 The question is not whether a branch has stepped [*244] over the line of separation, but how far. So long as the “stepping” does not prohibit a branch from accomplishing its constitutionally assigned tasks, and so long as the impact of the action is justified by an overriding interest within the constitutional authority of that branch, n150 the overstepping by one branch is not constitutionally excessive.
Justice Scalia is a formalist whose separation-of-powers jurisprudence has earned him a reputation as the “Prophet of Doom.” n151 Scalia served in the Office of Legal Counsel in the mid-1970’s, n152 an office which advises the President on separation-of-powers issues. As an assistant attorney general in that office, he testified before Congress in opposition to the legislative veto. n153 According to one author, “Assistant Attorney General Scalia was a willing knight well prepared to ride into battle … [Scalia] had no doubts in his own mind about the legislative veto’s unconstitutionality, and had no hesitancy in speaking his mind to anyone who would listen.” n154 Additionally, Scalia advocated a formalistic interpretation of the doctrine while a law school professor, n155 while serving on the United States Court of Appeals for the District of Columbia, n156 and he has continued to do so since coming to the Court. He himself has commented that “if there is anyone who, over the years, has had a greater interest in the subject of separation of powers, he does not come readily to mind.” n157
As the lone dissenter in Morrison and Mistretta, perhaps Scalia is a prophet of doom. Prophet or not, however, he is consis- [*245] tent. In his advocacy for clear lines, whether they are drawn in the sand or in the Constitution, “the rule of law …animates his separation-of-powers decisions.”
http://members.tripod.com/the_solipsist/id31.htm
Mike S.,
Maybe the Supremes should consider a judicial ethics course…for them on an annual basis just before the Fall term begins. Maybe Professor Turley can lead the discussion for them.
In my opinion Justice Scalia is a judicial bully in the same vein that Vice President Cheney was an executive bully. These men do what they want to do simply because there is no one to stop them. Outrageous behavior such as Scalia was party to in 2000 and Cheney took to the next logical step with torture thrill them to the very depths of their beings for raw power is useless unless one can throw it in the face of others and walk away laughing.
On their own, without the trappings of their offices, these men would have been mediocre achievers at best. This they know as they look in the mirror every morning and this mediocrity is what they are attempting to deny to themselves, their families, their friends, and most importantly, their enemies. Their weak characters demand the show of raw power in the erroneous belief that the illusion hides the core reality. They are hopelessly blind to the fact that the use of illusion reveals the weakness. It is this blindness that led to the development of their weak characters in the first place. They are thus beyond redemption.
History will not treat them kindly. Neither should we.
Excellent response Bob, Esq!
Elaine,
that was hilarious. Kind of scary too!
BBB: “Did SCOTUS or Congress certify the 2000 election? Even if we were to remove SCOTUS from the picture, the statutory deadline for amended returns was November 14th. Is that statutory deadline unconstitutional?”
SCOTUS exercised its power at a time when doing so would mean wresting control over the entire franchise; thus violating the separation of powers doctrine at the highest apex possible much less imagined by the framers. Per certification, the mere exercise of power at that time rendered the issue meaningless.
The case was NOT JUSTICIABLE.
“Bush v. Gore obviously attracted enormous public and media attention. Yet, one crucial aspect of the case was largely overlooked: justiciability. For all of the discussion about the decision, no one seemed to pay much attention to whether the Court properly had the legal authority to hear the case. Most likely, this is because justiciability doctrines are complicated and unfamiliar to the public. Perhaps, too, this is because neither of the parties raised justiciability issues in their briefs. This, however, does not excuse the Court’s failure to raise it, because it is firmly established that justiciability issues are jurisdictional, and courts are to raise them even if the parties do not. See, e.g., Allen v. Wright, 468 U.S. 737, 750-52 (1984); Warth v. Seldin, 422 U.S. 490, 498 (1975).” Bush v. Gore Was Not Justiciable, Erwin Chemerinsky, 76 Notre Dame L. Rev. 1093, June, 2001
And if you read Allen v. Wright & Warth v. Seldin you’ll find ample discussion about how the lack of justicibility brings up what topic? Oh yeah, THE SEPARATION OF POWERS DOCTRINE.
Ethics and Scalia don’t belong in the same sentence.
rafflaw,
Stephen Colbert did a funny segment on The Colbert Report a few months ago about Justice Scalia being a Constitutional originalist.
The Word—Original Spin
http://www.colbertnation.com/the-colbert-report-videos/360495/september-29-2010/the-word—original-spin
You are correct eniobob! Of course, their Gore v. Bush decision couldn’t be considered a political one, could it?
Some one square this for me:
“U.S. Supreme Court Chief Justice John Roberts said Tuesday the scene at President Obama’s State of the Union address was “very troubling” and the annual speech has “degenerated to a political pep rally.”
“When Supreme Court justices enter the House of Representatives in their black robes for the president’s next State of the Union address, Samuel Alito does not plan to be among them.
The justice said the annual speech to Congress has become very political and awkward for the justices, who he says are expected to sit “like the proverbial potted plant.”
http://www.outsidethebeltway.com/justice-alito-wont-attend-next-state-of-the-union/
This is not new but seeing what Scalia intends to due its seems to be quite an interesting contrast.
BBB,
Do you honestly believe that Michele Bachmann and the Tea Party Caucus is going to allow in any Dems or progressives? The mere fact that the meeting will be private with no press allowed should raise the same concern. Why would Pres. Bush’s ethics attorney be so concerned with the closed door meeting aspect?
rafflaw,
“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?”
From the Bloomberg article (linked to in your post);
“The speech will be open to all members of Congress”.
If only members of the Tea Party Caucus were permitted to attend, I’d have a problem with that. As it is, I think there will be plenty of watchdogs attending, if for nothing else, to ensure that no lobbying of the Justice takes place.
Bob,Esq.,
Did SCOTUS or Congress certify the 2000 election? Even if we were to remove SCOTUS from the picture, the statutory deadline for amended returns was November 14th. Is that statutory deadline unconstitutional?
(I voted for Bush in the 2000 election, but I didn’t vote in Florida.)
Eniobob,
You are probably right, but I am an eternal optimist.
Bob,Esq., The Bush v. Gore debacle still haunts me, but this business of Supreme Court Justices meeting Republican Congressmen in private is disturbing to me.
I take this with the same wt- attitude as I took the Judge Hudson campaign/solution connection on the Health care decision in Virginia,and that is we better get use to our intelligence being insulted for I am afraid “we ain’t seen nothing yet”
Ethics aside, Lord Scalia’s hypocrisy is delicious.
What congressman will ask Mr. Morrison v. Olson what happened to his separation of powers jurisprudence on December 9, 2000 when he and his cadre hijacked the franchise and concentrated all power within their self-anointed oligarchy so as to appoint a president; Articles III, VI and Amendment 12 notwithstanding.