Bench Memos

Scalia and Thomas Dine with Health Care Law Supporters

The Los Angeles Times and Chicago Tribune ran a story by James Oliphant yesterday suggesting that it was improper for Justices Antonin Scalia and Clarence Thomas to speak at the annual dinner of the Federalist Society because among the dinner’s sponsors were law firms representing those who are challenging the constitutionality of the health care reform law. The story began:

The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court.

Later on the story noted this did not violate any applicable ethics rules, but raised concerns nonetheless.

the sheer proximity of Scalia and Thomas to two of the law firms in the case, as well as to a company with a massive financial interest, was enough to alarm ethics-in-government activists.

In case there was any question about the significance of the story, the LAT headline read: “Scalia and Thomas dine with healthcare law challengers as court takes case.”  Yet the headline could just has easily have read “Scalia and Thomas dine with healthcare law supporters,” because among the dinner’s sponsors were law firms (such as Mayer Brown and O’Melveny & Myers) that are representing parties who are supporting the health care law and filed briefs in the very same case. This should not be a surprise as the Federalist Society’s annual dinner is a rather large affair with over two-dozen law firm sponsors that represent clients on all sides of all sorts of matters — much like the annual dinners sponsored by other prominent legal groups. But if the papers had reported that, then there would not have been much of a story.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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