Bench Memos

Re: Misreading the Tea Leaves

A follow-up of sorts to my pre-Christmas post on a New York Times editorial that criticized Justice Scalia for agreeing to speak (on separation of powers, as it turns out) to the Tea Party Caucus of the House of Representatives:

An article in today’s Los Angeles Times includes more commentary on the matter, including law professor Jonathan Turley’s observation that Scalia’s agreement to speak “suggests an alliance between the conservative members of the court and the conservative members of Congress.” The article also includes my puzzled response to Turley’s assertion:

“Does he think it’s improper for any justice ever to speak to any group of members of Congress who might be perceived as sharing the same general political disposition?” Whelan said. “My guess is that, schedule permitting, Scalia would be happy to speak on the same topic to any similar group* of members of Congress who invited him.”

Unfortunately, as a result of an editing error (in the current online version), the placement of my remarks gives the mistaken impression that I was disputing law professor Stephen Gillers, who is quoted for these eminently sensible remarks:

“In my view, a judge must take care not to speak only to groups on one side of the partisan divide,” said Stephen Gillers, a law professor at New York University. “I have no problem with such a talk so long as he avoids excessive identification with the Republican agenda.”

Meanwhile, I see that Turley has posted on his blog an item stating that he “was a bit surprised to see [me] support Scalia on this issue despite the criticism of ethics and constitutional scholars.” Two quick responses: (1) In my quoted comment, I was largely trying to understand the bounds of Turley’s proposition (though, given the editing error in the article, that wouldn’t have been clear to Turley). (2) My initial reaction is largely the same as Gillers’s, so it wouldn’t seem to be the case that I am standing against some consensus of “ethics and constitutional scholars” (not that that fact alone would particularly trouble me).

In a passage that may be garbled by some sort of glitch, Turley also faults me for “appear[ing] to believe this is a purely subjective test.” I confess that I can’t make heads or tails of his assertion; I don’t even know what “this” is referring to. I see nothing in my remarks that implies a “subjective test” (much less a “purely subjective test”). Maybe Turley thinks that I’m maintaining that it’s okay for Scalia to accept the invitation so long as he has the subjective intention of accepting similar invitations from other groups. But my point (and, I think, Gillers’s) is instead that it’s the broader pattern of speeches, not any isolated event, that matters.

* The actual comment that I provided to the reporter referred to “any similarly sized group,” not “any similar group.”


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