Scalia and the Rise of the Celebrity Justice: Should Justices Have a Political Base?

Here is today’s column in the Washington Post on the controversy over Justice Scalia’s appearance on Monday in a Tea Party Caucus event for new House members. I view the issue as having broader implications for the Court.

Justice Antonin Scalia is scheduled to appear before an eager freshman class Monday to talk about the Constitution. This is nothing new for Scalia, who often speaks at law schools. These students, however, are a little different.

At the invitation of Rep. Michele Bachmann (R-Minn.), Scalia will be addressing new conservative members of the House of Representatives. To them, Scalia is a nothing short of a rock star. He personifies not only conservative values but a new model for the Supreme Court: the celebrity justice.

Where Scalia has ventured with crowd-pleasing rhetoric, other justices are following. They rally their bases on the right or the left with speeches, candid interviews, commencement addresses and book tours. They appear to be abandoning the principle of strict neutrality in public life, long a touchstone of service on the highest court.

The Bachmann event takes this posturing to a new level. Scalia will be directly advising new lawmakers who came to Congress on a mission to remake government in a more conservative image. Many of them made pledges to repeal health-care reform, restrict immigration and investigate the president – pledges based on constitutional interpretations that might end up before the court.

At best, Scalia’s appearance can be viewed as a pep talk. At worst, it smacks of a political alliance.

Supreme Court justices have long chosen fairly cloistered lives and avoided public speeches and appearances. Historically, most members of the highest court – where the proceedings are still not televised – were unrecognizable to citizens. In an incident that’s a favorite of mine, a tourist family once asked an elderly man to take their picture at the court – and found out later that it was Justice Byron White.

Justice John Paul Stevens, who retired last year, may have been the last of the breed of judges truly committed to limiting public appearances. A couple of years ago, Stevens and I spoke to a judicial conference in Milwaukee and flew on the same plane. While we chatted at the gate, a lawyer came up and introduced himself to me. He didn’t recognize Stevens, and when I introduced him to the justice, the lawyer turned scarlet and made a fast retreat. Stevens never wanted to be a legal idol. He wanted to speak only through his opinions.

But as soon as Scalia was appointed to the Supreme Court by President Ronald Reagan, it was clear that he would be a different type of justice. He was instantly recognized as the intellectual leader of the right on the court at a time of intense ideological divisions. He also chafed at the court’s monastic environment. Charming and irascible, Scalia is a much valued speaker and loves to interact with lawyers and law students. He often appears at conservative events and thrills crowds by attacking liberal doctrines. Scalia gave a revealing interview, published in this month’s California Lawyer magazine, speaking against claims that the 14th Amendment protects women and gays from discrimination. While that was not a new position for Scalia, he again triggered a public debate on issues that are likely to come before the court this term.

Scalia is not the first justice to cultivate a constituency. Justice William Douglas, appointed by Franklin D. Roosevelt in 1939, publicly embraced environmental causes, including the preservation of the C&O Canal. More recently, Justice Sandra Day O’Connor was criticized for condemning the death penalty. In a 2001 speech in Minnesota, O’Connor said that she questioned whether the death penalty could be “fairly administered in this country.” She told her audience, “Minnesota doesn’t have [the death penalty], and you must breathe a big sigh of relief every day.”

Still, Scalia is the first real celebrity justice. When he appears at conservative events, supporters line up to greet a man who seems more oracle than orator. They are drawn not just to his originalist views but to the sense that he is a purist on a court of relativists. And his fans are often rewarded with a zinger from the justice that would set the hair of every liberal on fire. For example, in a 2006 talk to students in Switzerland, Scalia denounced the idea of giving Guantanamo detainees rights in federal courts, with a disturbingly personal take on the matter: “Give me a break. . . . If he was captured by my army on a battlefield, [Guantanamo] is where he belongs. I had a son on that battlefield, and they were shooting at my son, and I’m not about to give this man who was captured in a war a full jury trial. I mean, it’s crazy.”

Other justices, particularly those on the right, appear to be following Scalia’s lead and presenting their politics publicly. This includes Justice Clarence Thomas, who is known for his utter silence during oral arguments. Outside the court, though, he has denounced our society’s “focus on our rights” and the “proliferation of rights” protecting citizens. And the whole world saw Justice Samuel Alito shake his head and mouth “not true” as the president criticized the recent Citizens United decision on campaign finance at the State of the Union address last year.

Justices who flaunt their politics publicly do more than just lecture – they also can raise cash for ideological allies. Scalia and Thomas have reportedly attended events funded by conservative billionaires David and Charles Koch. Last week, Thomas admitted through a spokesman that he “dropped by” a Koch session in 2008. Both justices were even featured in Koch promotional material with Glenn Beck and Rush Limbaugh.

Alito has spoken at a fundraiser for the Intercollegiate Studies Institute, a conservative educational group. He regularly attends conservative fundraisers, including a recent event for the American Spectator magazine; he headlined that annual dinner in 2008. When confronted about his presence at the clearly partisan event, Alito dismissed concerns, saying, “It’s not important.”

But it is important. Perhaps not to Alito or Scalia, but to the court. If justices come to personify political movements, the law appears to be merely an extension of the personalities – and the politics – on the bench.

Some judicial commentary and appearances raise serious ethical questions. Canon 4 of the judicial Code of Conduct states that a federal judge should not take part in any activities that “reflect adversely on the judge’s impartiality.” This canon specifically warns that “a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.”

But this code applies only to lower-court judges; the members of the highest court in the land are not, in fact, subject to any code of conduct. The only direct limitation is the federal law that requires a judge or a justice to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This law, however, lacks a process for making a complaint and has never been enforced against a justice. Each justice is left to be the judge of his or her own alleged misconduct.

This is not a problem only for the more conservative justices. While Justices John Roberts, Scalia, Thomas and Alito have all spoken to or been honored by the conservative Federalist Society, Justice Ruth Bader Ginsburg has headlined for the liberal American Constitution Society, and Justice Stephen Breyer appears frequently before outside groups. In one speech at a foreign conference, Ginsburg assailed conservative members of Congress for statements that she said “fueled” an “irrational fringe” that threatened her life.

Ginsburg’s remarks highlight an irony with celebrity justices. During her confirmation hearings in 1993, she refused to answer questions about issues that might later come before the court. Thus the “Ginsburg rule” was born: Aspiring justices, at very cautious confirmation hearings, avoid engaging on the substance of their legal opinions. Yet, after confirmation, justices are increasingly entering into public debates over the law.

Monday’s Bachmann-convened summit featuring Scalia magnifies this problem. The effort to educate new lawmakers about the Constitution is commendable. (I have met several times with members of Congress, including Bachmann, for lunches to discuss constitutional principles.) However, if Scalia educates new members, that undermines both the court and Congress. The principle of judicial neutrality should not be compromised for a legal seminar.

Justice Robert Jackson once advised that justices “are not final because we are infallible, we are infallible because we are final.” That winking observation is certainly true – justices Justices clearly can make mistakes. Few can resist public adoration. However, as they justices yield to that temptation, citizens may find it hard to accept the finality of their decisions. If justices merely carry the torch for their political allies, law becomes little more than a part of politics.

Justices do not have a “base.” They must ask more of themselves by offering less to their respective constituencies.

Jonathan Turley is the Shapiro professor of public interest law at George Washington Law School.

January 23, 2010
Washington Post (Sunday)

34 thoughts on “Scalia and the Rise of the Celebrity Justice: Should Justices Have a Political Base?”

  1. Just wish to say your article is as astounding. The clearness in your post is simply spectacular and i could assume you are an expert on this subject. Well with your permission allow me to grab your RSS feed to keep updated with forthcoming post. Thanks a million and please continue the gratifying work.

  2. John K.,
    Your facts are not correct. He was not the first President to criticize the Court. Were you listening to President Bush’s speeches and Ronald Reagan’s? They almost always spoke about renegade judges making the law.
    Bruce, your idea about the Senate Judiciary is a good one.

  3. If Obama can criticize the court openly like he did in his last State of the Union address, the first Prez to do so. Why not. Political neutrality doesn’t exist in the Court as demonstrated by both sides in 2000 and by Supreme Court decisions affirming reverse discrimination.

  4. One thing more: it is fruitless to ask the Justice Department to investigate Scalia and Thomas’s involvement with the Koch machine. The administration has to litigate before the Supreme Court all the time and is naturally loathe to alienate any of the Justices. A better route is to get the Senate Judiciary Committee on the case.

  5. Congress should establish a code of conduct for the Supreme Court. Due to Separation of Powers principles, Congress probably cannot enforce such a code except through impeachment – but a Code would help define the boundaries of “high crimes and misdemeanors.”

    Among other things the Code should bar a justice from remaining on the Bench if his spouse is a political activist like Ginny Thomas. I realize this is a tricky thing to define – a spouse should not lose all her/his 1st amendment rights. But when a spouse becomes clearly aligned with a movement, one of whose core principles is to affect the whole mode of lawmaking and interpretation, a dangerous line has been crossed.

  6. Turley’s broader position is also incompatible with the traditional practice that he purports to rely on. For example, in 1985 Justice William Brennan, in a speech at Georgetown, famously took issue with then-Attorney General Edwin Meese’s advocacy of constitutional originalism. Indeed, so did Justice John Paul Stevens, in a 1985 speech to the Federal Bar Association. Turley not only overlooks these public debates; he even claims that Stevens, who “may have been the last of the breed of judges truly committed to limiting public appearances,” “wanted to speak only through his opinions.”

  7. rafflaw

    Brilliant, flawed, charismatic, and way too inclined to uplift his arm and his arms for my taste.

    “The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone.

    This will lay all things at their feet… We shall see if they are bold enough to take the daring stride their five lawyers have lately taken. If they do, then… I will say, that ‘against this every man should raise his voice,’ and more, should uplift his arm.”
    Thomas Jefferson
    Source: (Letter to T. Ritchie, 1820).

  8. Buckeye,

    Once again proving Jefferson was indeed the smartest man to ever hold the office of President.

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