Bench Memos

More on Misreading the Tea Leaves

Justice Scalia is scheduled to speak today on the topic of separation of powers at an event organized by the Tea Party Caucus of the House of Representatives and open to all members of Congress.

I’ve previously expressed my befuddlement at law professor Jonathan Turley’s claim that Scalia’s agreement to speak “suggests an alliance between the conservative members of the court and the conservative members of Congress.” In yesterday’s Washington Post, Turley tries to make his case in an op-ed.

I certainly agree with Turley’s opening proposition that justices should be politically neutral in public life. As he nicely puts it, “If justices come to personify political movements, the law appears to be merely an extension of the personalities—and the politics—on the bench.”

But, for reasons similar to those that liberal legal ethicist Stephen Gillers has expressed, I’m unpersuaded that Scalia’s speech comes anywhere close to violating the principle of political neutrality. For starters, Scalia’s speech is on a legal, not a political, topic and is open to all members of Congress (a fact that Turley doesn’t see fit to mention). Moreover, as I’ve said before, I assume that Scalia, schedule permitting, would be happy to speak on the same topic to any similar sized group of members of Congress who invited him, irrespective of the group’s political persuasion. Turley doesn’t even acknowledge that possibility, much less dispute it. Nor does he acknowledge or dispute that, as CNN reports, “[s]ubstantive meetings between members of the high court and legislators are not unusual.”

I found especially striking this claim by Turley (emphasis added):

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

Perhaps Turley has never heard Scalia speak before. I would think that anyone who has would expect that what is most likely to occur at the event today is a cerebral presentation by Scalia of the role of separation of powers in our constitutional system. But Turley excludes that possibility from consideration and instead maintains that “[a]t best” the speech “can be viewed as a pep talk.” Absurd.

By the end of his op-ed, it appears that Turley’s much broader position is that justices shouldn’t take part in “public debates over the law.” To his credit, he is fairly evenhanded in applying that position to current justices, as he faults Justice Ginsburg for speaking to the American Constitution Society and Justice Breyer for “appear[ing] frequently before outside groups.” But his broader position goes far beyond the strictures of the Code of Conduct for United States Judges. Canon 4A(1) states: “A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.” Indeed, the commentary to that canon states that “a judge is in a unique position to contribute to the law, the legal system, and the administration of justice” and that “the judge is encouraged to do so” (emphasis added), “[t]o the extent that the judge’s time permits and impartiality is not compromised.”

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.”

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