Justice Scalia Takes Some Tea

We learned this week about our latest tea partier – Justice Scalia.  Congresswoman Bachmann (R MN) invited him to appear before the Congressional Tea Party caucus at a meeting open to other Members of Congress but not open to the public.

I admire Justice Scalia for his intelligence and steadfast adherence to his principles.  Still, I am not sure this meeting is a good idea.  Judicial ethics rules are not violated (most don’t even apply to the Supreme Court), but I still don’t think the meeting is a good idea.

The Tea Party caucus has definite views on issues currently before the Court or likely to come before the Court.  Congresswoman Bachmann and dozens of other Members of Congress have already filed a brief seeking to strike down the new health care legislation.  They have their views on gay marriage, don’t ask don’t tell and many other issues likely to come before the Court.

Justices will have social contact with Members of Congress and other prominent Washingtonians, and the Justices in these social settings may hear views on matters likely to come before the Court.  Hopefully they will also have the good judgment and good taste to know when and how to change the topic of conversation.  The Justices will also hear from Members of Congress more formally through amicus briefs of the sort filed in the health care case.  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?

Comments

[Monroe Freedman]

I used to laud Scalia for his steadfast adherence to his principles. No more. For one glaring illustration, and in the area of judicial ethics, see Liteky v. U.S., 510 U.S. 540 (1994).

[Thomas]

I'm not sure I understand the complaint. As I understand it, Justice Scalia has been asked to address members of Congress on the meaning of the constitution, a subject about which he has some expertise. That's the sort of thing that Supreme Court justices do all the time, at law schools for example. The meeting is open to all members of Congress, not just those adopting one particular view of policy, but is closed to the public, which is again typical for the arrangements that justices often make with law schools when they speak there.

Reading this post one would believe that Scalia has been asked to come to a meeting so that certain members of Congress could communicate their views on the constitution to him, which seems pretty unlikely (except perhaps in the innocuous sense that the (friendly and hostile) questions at a justice's lecture typically communicate the questioner's views on the constitution).

Finally, to describe constitutional law as the 'work of the judiciary' seems to me to be both inaccurate and telling.

[Monroe Freedman]

I agree with Thomas. My post wasn't intended to suggest otherwise.

[Richard Painter]

Closed door meetings of Justices with Members of Congress are not particularly common and raise the issues I described.

Once again, this is not about a particular ethics rule but rather about common sense. This creates the appearance of partiality and undermine the credibility of the Court.

The meeting also might not be enough to require recusal in the health care case -- depending upon what was discussed at the meeting. As I told the Christian Science Monitor six years ago, Justice Scalia's Duck Hunting trip with Vice President Cheney probably did not require his recusal from a case in which the Vice President was a party. Still it was not the smartest thing to do:

http://www.csmonitor.com/2004/0213/p02s01-usju.html/(page)/2

The Supreme Court spends a lot of time on Constitutional law. Their opinions may not conform to the Constitution, but those opinions comprise a large body of what is called Constitutional law. Much of Constitutional law involves deciding whether acts of Congress are Constitutional. Ex-parte meetings with Members of Congress on this same subject do not instill confidence in the Court.

[Richard Painter]

Persons interested in a historical perspective on ex-parte communications between different branches of government and the Court, should read the Harvard Law Review interview with Justice Frankfurter's former clerk Philip Elman who communicated ex-parte with the Justice about the Brown v. Board case while Elman was at the Justice Department.

There was an earlier instance in which Frankfurter as a Harvard law professor was working for a party in an amicus capacity and went to see Chief Justice White to ask him to take a case on oral argument rather than on the briefs. See Harlan B. Phillips, Felix Frankfurter Reminisces (1960), recounting Frankfurter's ex-part communications with Chief Justice White on Stettler v. O'Hara and Simpson v. O'Hara.

This and more in the Noonan & Painter casebook on legal ethics. Third edition forthcoming!

[Monroe Freedman]

Duck-Blind Justice: Justice Scalia’s Memorandum in the Cheney Case, 18 Georgetown Jour. Legal Ed. 229 (2004), gives multiple reasons why Scalia was required to recuse himself under sec. 455 in the Sierra case.

[Richard W. Painter]

The argument is that Justice Scalia was required to recuse because of: (i) his close friendship with Vice President Cheney, who was named as a party in the case, (ii) his acceptance of something of value -- a duck hunting trip -- from the Vice President, and (iii) the potential for ex parte communications with the Vice President.

I don't buy it. In this case the Vice President was sued in his official capacity. Indeed, whether or not they are actually named as defendants in cases, the President and the Vice President take official actions that are with regularity challenged in the courts. A personal friendship with either the President or the Vice President does not require recusal whenever the Administration's actions are challenged in court and it makes even less sense to change the rule simply becuase the plaintiff names the President or Vice President in the complaint. Such a rule would allow litigants to choose which judges and justices will decide their cases by deciding which government officials to actually name in their complaint.

As for something of value, a personal capacity duck hunting trip (whatever it is worth if anything) is not something of value from the litigant being sued in his official capacity. We all know what Justice Scalia values most -- his seat on the Court -- and he got that from President Reagan. He never had to recuse himself from cases where the Reagan Administration's actions were challenged in court. Would we really change the result if President Reagan had invted him for a weekend at the ranch after putting him on the Court. I don't think so.

Ex-parte communicaions about the case are the crux of the matter. Either ex-parte communications about the case took place or they did not. If they did, Justice Scalia probably was required to recuse. If not, he should not have recused. Justice Scalia says that there were no ex-parte communications, and if this is true, he was right not to recuse.

The fact that the public may think that Justice Scalia is lying and that there were ex-parte communications is the reason I said that trip was not a smart thing to do. It is not a reason to recuse if he is telling the truth.

Justice Scalia should have learned from that incident to avoid yet one more situation where someone could say that there are ex-parte communications. The situation here is worse because the entire point of the Tea Party meeting is to talk about constitutional law. No ducks -- real or pretend.

One bright spot: at least Justice Scalia can go up to the Hill in a suit and tie rather than the bright orange vest that I would have highly recommended for hunting with the Vice President.

[Brad Wendel]

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.

[Monroe Freedman]

These responses are all answered, in detail and with citations, in the article.

I take it you would agree with me that Scalia was required to recuse himself in Bush & Cheney v. Gore, in which Cheney was not a litigant as a government official.

[Richard W. Painter]

Nobody has suggested that any of this will actually change Scalia's mind. The Tea Party invited him up to the Hill for obvious reasons -- he agrees with them.

Still, the predisposition of the judge is irrelevant to the question of whether ex-parte communications are permitted. The predisposition of the judge is also irrelevant to the appearance problem when judges get too close to litigants. A causal relationship with a decision of the Court is not required for this to damage the Court. I would say the same thing about Justice Kennedy or Justice Kagan meeting with this same group of Members of Congress behind closed doors to discuss constitutional law. It is not a good idea.

I am not sure what liberal critics of the Court have to say, but as a moderate to conservative critic of the Court I am concerned about the Justices getting to close to litigants. I agree with some, not all, of Justice Scalia's opinoins, and I worry that this is yet one more episode that undermines his jurisprudence in the public eye.

The answer is restraint to begin with, not recusal from cases after the fact except in the most extreme situations. Same for Bush v. Gore. Being friends with one of the candidates for President or Vice President does not require recusal from such a case. I am not sure the Court should decide such "political" cases when it does not absolutely have to, but friendship with the candidates is not the main problem. When the Constitution was drafted the founders knew that many of the Supreme Court justices would probably be friends of the President, Vice President and other government officials as well as candidates for these offices. The Constitution contemplated that disputed elections would be decided in the House of Representatives, but not because of concern that Supreme Court Justices would be friends with one of the candidates.

The entire Court should have declined to decide Bush v. Gore (my own view is that if it had, the result of the election would have been the same and the Court would have protected itself by staying out of it)

[Monroe Freedman]

Yes, but Scalia expressly acknowledged in his Sierra memo that his quarter-century friendship with Cheney was so close that he would have to recuse himself if Cheney were a litigant in his private capacity and not as Vice President.

On drawing the lawyer-judge-friendship rccusal line, see ULE sec. 8.08.

[J. Bogart]

"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."
Prof. Wendell has a very odd view of causality and opinions. I wonder if he meant what he wrote, that Scalia's opinions are causally unrelated to one another and that his expression of opinions are causally unrelated to the opinions he holds.
If so, then Scalia should step down because he is no longer rational.

[מאפרת]

I remember that several of the justices were hurt that the chief executive would criticize a previous positioning of the trial in a community condition of the partnership deal with before the legislature.