Associate Justice Antonin Scalia is again in the midst of controversy with his decision to accept an invitation from Rep. Michele Bachmann (R-Minn.) to speak to incoming conservative members about the Constitution as part of their training. Bachmann, the founder of the House’s Tea Party Caucus, is leading efforts to repeal health care and seek new legislation based on a more conservative view of the Constitution. The decision to participate in such an event shows exceedingly poor judgment.

Scalia has long invited such criticism with his appearances at conservative conferences and personal trips. Indeed, as discussed in an earlier column, such questionable decisions probably blocked Scalia’s consideration as chief justice despite his being the intellectual leader of the right side of the Court.

The members of this Court appear to have an increasingly dismissive attitude toward their duty to avoid appearance of this kind. Justice Alito was recently (and justifiably) criticized for attending political fundraisers as well as his improper expression of disagreement with the President during a State of the Union.

Ultimately, this trend must be attributed to a failure on the part of Chief Justice Roberts to maintain core principles of neutrality and proper decorum on the Court. It is the duty of the Chief Justice to go to errant justices and emphasize these values. Instead, Roberts appears to have taken at best a passive role and at worst a supportive role in these controversies. I was astonished after the State of the Union controversy to see Roberts appear to support Alito instead of reaffirming the long-standing principle of complete neutrality in these speeches. Justice should not in my view even applaud at such events.
I was a bit surprised to see the president of the Ethics and Public Policy Center support Scalia on this issue despite the criticism of ethics and constitutional scholars. M. Edward Whelan, a former clerk to Scalia, told the LA Times below, appears to believe this is a purely subjective test:
“does he think it’s improper for any justice ever to speak to any group of members of Congress who might be perceived as sharing the same general political disposition?” If that is the test, there would be objective standard for justices and, so long as a justice takes a highly permissive or narcissistic view of such appearances, there would be no problem with any appearance. The EPPC is described on its website as

Washington, D.C.’s premier institute dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy. From the Cold War to the war on terrorism, from disputes over the role of religion in public life to battles over the nature of the family, EPPC and its scholars have consistently sought to defend the great Western ethical imperatives — respect for the inherent dignity of the human person, individual freedom and responsibility, justice, the rule of law, and limited government.

However, Mr. Whelan in the update below has indicated that he does not endorse a subjective test and actually agrees with Gillers in the article linked below.

This particular appearance leaves the impression of an alliance between a conservative justice and conservative members in a Congress planning a series of measures based on a conservative reading of the Constitution. It undermines the integrity of the Court and I would be equally opposed to liberal justices participating in Democratic training sessions. Such participation leaves the appearance of a pep talk like a coach at the start of a game.

For full disclosure, I have regularly attended lunches with members of Congress where I have been asked to discuss constitutional questions. Rep. Bachmann has attended some of these lunches. I have always appreciated the ongoing interest in members in having a dialogue on the constitution and I credit Rep. Bachmann with her own desire to discuss such issues with new members. However, the ethical concerns in this particular speaker outweighs its educational value in my view. [Update: It appears that some conservative radio hosts are saying that I called Rep. Bachmann “bombastic.” Just for the record, that was the description of the reporter in the article below in a summary of my views on Scalia’s participation — not my own word. I would have been equally opposed to a democratic member incorporating a liberal justice. The controversy over this particular word from the reporters is in my view . . . well . . . bombastic].

UPDATE: Following this post, Mr. Whelan posted a response to clarify his remarks:

An article in today’s Los Angeles Times includes more commentary on the matter, including law professor Jonathan Turley’s observation that Scalia’s agreement to speak “suggests an alliance between the conservative members of the court and the conservative members of Congress.” The article also includes my puzzled response to Turley’s assertion:

“Does he think it’s improper for any justice ever to speak to any group of members of Congress who might be perceived as sharing the same general political disposition?” Whelan said. “My guess is that, schedule permitting, Scalia would be happy to speak on the same topic to any similar group* of members of Congress who invited him.”

Unfortunately, as a result of an editing error (in the current online version), the placement of my remarks gives the mistaken impression that I was disputing law professor Stephen Gillers, who is quoted for these eminently sensible remarks:

“In my view, a judge must take care not to speak only to groups on one side of the partisan divide,” said Stephen Gillers, a law professor at New York University. “I have no problem with such a talk so long as he avoids excessive identification with the Republican agenda.”

Meanwhile, I see that Turley has posted on his blog an item stating that he “was a bit surprised to see [me] support Scalia on this issue despite the criticism of ethics and constitutional scholars.” Two quick responses: (1) In my quoted comment, I was largely trying to understand the bounds of Turley’s proposition (though, given the editing error in the article, that wouldn’t have been clear to Turley). (2) My initial reaction is largely the same as Gillers’s, so it wouldn’t seem to be the case that I am standing against some consensus of “ethics and constitutional scholars” (not that that fact alone would particularly trouble me).

In a passage that may be garbled by some sort of glitch, Turley also faults me for “appear[ing] to believe this is a purely subjective test.” I confess that I can’t make heads or tails of his assertion; I don’t even know what “this” is referring to. I see nothing in my remarks that implies a “subjective test” (much less a “purely subjective test”). Maybe Turley thinks that I’m maintaining that it’s okay for Scalia to accept the invitation so long as he has the subjective intention of accepting similar invitations from other groups. But my point (and, I think, Gillers’s) is instead that it’s the broader pattern of speeches, not any isolated event, that matters.

* The actual comment that I provided to the reporter referred to “any similarly sized group,” not “any similar group.”

I appreciate Mr. Whelan’s clarification and I have noted it above as well. I actually have qualms with the position of Professor Gillers on this issue. I believe participation in such events inherently raises appearance problems. It is not a matter of a prohibition under the ethics rules but rather the underlying principles of the Court itself.

Source: LA Times

Jonathan Turley