Much of Bruce Allen Murphy’s new biography of Justice Scalia is dedicated to a tedious and tendentious account of seemingly every speech or interview that Scalia has ever given (e.g., the “controversial television interview with Maria Bartiromo”!). Murphy contends that Scalia’s “extrajudicial speeches and conduct … ventured far beyond those of any other justice, including Abe Fortas, who was forced to resign from the Court.” Further, according to Murphy, when Scalia began making speeches in his early years on the Court, he violated the “prevailing ethical norms of the Court against such extrajudicial speechmaking.” This “informal rule,” Murphy argues, “had been in existence since 1969, after the forced resignation of Justice Abe Fortas.”
Murphy’s claims are bogus. For starters, if there had been an “informal rule” against “extrajudicial speechmaking,” how is it that Justice William Brennan could have given a speech in October 1985 contesting the Reagan administration’s constitutional philosophy? Murphy conveniently forgets that speech, even though he had some twenty pages earlier quoted from it in highlighting the “legal intellectual fireworks between Justice William Brennan and Reagan attorney general Edwin Meese.” Murphy cites, and tries to distinguish away, a handful of speeches by Justice Blackmun in the early to mid-1980s, but his distinction—Blackmun was trying to “explain why analysts and observers should see him differently,” while Scalia “was outlining the terms of how he would act in the future”—is inane, ought to cut against Blackmun (why should a PR campaign be more acceptable than discussion of judicial philosophy?), and obviously doesn’t apply to Brennan’s speech.
Further, Canon 4 of the Code of Conduct for United States Judges (which doesn’t formally apply to Supreme Court justices, but which they have long looked to for guidance) expressly provides that, within broad limits, a judge “may speak, write, lecture, and teach on both law-related and nonlegal subjects.” As it happens, Murphy himself, in his published entry on “Extrajudicial Activities” in the Encyclopedia of the Supreme Court of the United States (2008), refers to extrajudicial activities of justices that “can involve activities as innocuous as giving a speech.” (Emphasis added.) (He does state later in that entry that speeches by justices “have led to some debates about the proper political role of the modern Court.”)
That same Encylopedia entry by Murphy renders absurd his claim that Scalia’s speeches and conduct exceed Fortas’s or could even be plausibly be compared to Fortas’s. By Murphy’s account, Fortas helped LBJ “draft pieces of legislation,” “revise[d] State of the Union addresses in the Oval Office,” “served as Johnson’s secret emissary to the Dominican Republic during a 1965 coup,” discussed with LBJ “issues then under consideration by the Supreme Court,” and agreed to payment to serve on a foundation funded by Louis Wolfson, whose appeal of his criminal conviction was pending in federal court.
Murphy also seems blissfully unaware that Justice Ginsburg authorized the NOW Legal Defense and Education Fund to name a lecture series after her—the “Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law”—even as that group continued to take part in cases on which Ginsburg sat. Nothing in the wildest smears that Murphy parrots against Scalia comes anywhere close to Ginsburg’s conduct.