Bench Memos

NYT’s Dismal Editorial Standards and Bruce Fein’s Falsehoods

As Eugene Volokh documents in this recent post, the New York Times’s editorial page evidently has a curious policy of not publishing letters to the editor that point out that house editorials contain factual errors. Further, it would seem that the Times is happy to publish letters that present factual errors or distortions that support the Times’s editorial position.

Take, for example, this letter (emphasis added) that appeared in the Times last week from the ever more unhinged Bruce Fein (whose “unalloyed jurisprudential iconoclasm” a White House lawyer by the name of John G. Roberts complained of nearly three decades ago):

Justice Antonin Scalia galloped beyond the farthest boundaries of judicial propriety in secretly meeting on Capitol Hill to discuss the Constitution with Tea Party members of Congress saddled with a co-equal duty to assess the constitutionality of legislative action. If there are better ways to destroy public confidence in judicial impartiality, they do not readily come to mind.…

Don’t be surprised if a Tea Party member soon speaks on the floor of the House urging repeal of the health care reform law’s individual mandate because Justice Scalia secretly advised that it exceeds the powers of Congress. 

The Times for some reason sees fit to append to Fein’s letter the note that Fein “was associate deputy attorney general under President Reagan, 1981-1983.” Given that Fein’s mid-level (non-presidential) political appointment three decades ago has no relation to the subject of his letter, it would seem that the Times is trying to use Fein’s imagined conservative bona fides against Scalia.

As Fein’s last sentence makes clear, the factual premise of his letter is either that Justice Scalia “secretly advised” the House Tea Party Caucus that Obamacare “exceeds the powers of Congress” or that it’s at least plausible to suspect that he might have done so. That factual premise, as both Fein and the Times knew or should have known, is clearly false. As accounts from liberal Democratic members of the House who attended Scalia’s talk make clear, Scalia spoke “at a very high level” on separation of powers—a topic that would likely not touch at all on the scope of Congress’s powers (which is much more a matter of federalism)—and did not address Obamacare.

The very idea that Scalia might have used the meeting to opine on whether Obamacare “exceeds the powers of Congress” is nutty conspiracy theorizing. For starters, there is zero reason to believe that Scalia has actually had occasion to form a settled opinion on that question. (If and when it is necessary to do so, I am confident that he will not form a settled opinion before he has studied the opposing briefs and explored carefully how the question fits with the positions he has previously taken, including in his concurrence in Gonzales v. Raich.) Further, there is zero reason to believe that Scalia would see fit to advise members of Congress of his thinking on the question. Scalia’s practice is not to speak on a contested legal issue beyond the views that he had already expressed in his written opinions. Why, pray tell, would he do so here? (Fein’s implicit suggestion that House Tea Party members would want to know Scalia’s view in order to “urg[e] repeal of the health care reform law’s individual mandate” makes no sense, as plenty of scholars have already amply spelled out the best case again the constitutionality of the mandate.)

Fein also contemptibly alleges that Scalia’s Tea Party Caucus event was “secret[].” Far from being secret, it was publicized in advance and was open to all members of Congress, none of whom was under any obligation not to discuss its contents. The meeting was closed to the press (or “behind closed doors,” as a recent Times editorial put it), but—especially with members of both parties present—that’s a far cry from being secret.

What is perhaps silliest about Fein’s letter is his apparent belief that barring meetings like Scalia’s would accomplish anything. If a justice were for some reason inclined to offer improper political advice to members of Congress, he could easily do so by making a phone call or two. A highly publicized meeting open to all members of Congress must surely be among the least likely avenues for improper political advice.

I’m open to hearing a coherent and persuasive argument why there is anything improper about a justice speaking on a legal topic at an event that is organized by a formal House caucus and that is open to all members of Congress to attend. But for weeks now, all I’ve encountered instead have been attacks on Scalia that rest on wild factual distortions. To quote Fein in a context in which his remark actually makes some sense, “If there are better ways to destroy public confidence in judicial impartiality, they do not readily come to mind.”


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