Bench Memos

Boston Globe’s Fact-Free Attack

A house editorial in today’s Boston Globe bears the title “By skipping Obama speech, justices bring politics to court.” Its opening sentence asserts (emphasis added):

The decision by Supreme Court justices Antonin Scalia, Samuel Alito, and Clarence Thomas to skip President Obama’s State of the Union address has been widely interpreted as payback for Obama’s criticism of the court in last year’s speech.

Oh, really? Who has interpreted the justices’ non-attendance that way, and on what basis?

According to this account, “Justices Scalia and Thomas rarely attend State of the Union addresses,” and “Justice Alito is in Hawaii, giving a speech to the Hawaii Bar Association.”

If Scalia and Thomas “rarely attend” State of the Union events (and since they also weren’t present last year for President Obama’s criticism last year of the Court’s ruling in Citizen United), what possible reason is there to interpret their non-attendance as “payback”?

As for Justice Alito: It turns out, in fact, that Alito was in Hawaii (and, I gather, may still be in Hawaii) as part of the University of Hawaii law school’s Jurist-in-Residence Program. Given how late the date of the State of the Union address was announced, it would seem likely that he had committed himself in advance to the Hawaii gig. But even if he chose to go to Hawaii instead of attending the State of the Union address, who could possibly fault him for that decision?

More broadly, I largely agree with John Derbyshire that, no matter who is president, the State of the Union event is a dreadful affair. I certainly don’t think that a justice should choose to attend when the president shares his political leanings and not to attend when the president doesn’t. But I wouldn’t fault any justice who concludes that it’s generally best not to attend.

As for the editorial’s cheap slap at Scalia for speaking at an event organized by the House’s Tea Party Caucus, I’ll refer the reader to my most recent post on the matter (and to the linked posts therein). I will note that the Globe also faults Justice Ginsburg for permitting 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”) and for attending the series. (She actually gave opening remarks on at least one occasion.) But I don’t quite see how the extraordinary spectacle of a justice’s permitting a repeat litigant to name a lecture series in her honor is somehow similar (“parallel”) to a justice’s speaking on a legal topic at an event organized by a House of Representatives caucus and open to attendance by all members of Congress.


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