Bench Memos

Those Law Professors Say the Darnedest Things

In yet another in an endless series of unintentionally comic statements by law professors, I’ll highlight this passage from the LA Times account of Justice Scalia’s speech yesterday at an event organized by the Tea Party Caucus of the House of Representatives (and open to all members of Congress):

University of Texas law professor Lucas A. Powe, a historian of the Warren Court, said Scalia’s appearance makes the court look partisan. “He is taking political partisanship to levels not seen in over half a century,” Powe said.

Powe, as a historian of the Warren Court and a former law clerk to Justice William O. Douglas, ought to know something about “political partisanship.” Indeed, according to his own summary of one of his books, Powe “find[s] the Warren Court a functioning partner in Kennedy-Johnson liberalism.” Yet Powe somehow sees fit to compare with the Warren Court’s history of political decisionmaking Scalia’s speaking on a legal topic to a bipartisan group of members of Congress. Ludicrous.

As just one example of political partisanship (beyond judicial decisionmaking) by members of the Warren Court, I’ll note that (according to Seth Stern’s and Stephen Wermiel’s new biography of Justice Brennan (p. 306)) Justice Abe Fortas had a “role writing [President] Johnson’s 1966 State of the Union address—several months after joining the Court.” As that was less than “half a century” ago, Powe would evidently have us believe that Scalia’s speaking on separation of powers at an event organized by the Tea Party Caucus of the House of Representatives—an action that, for reasons that I’ve explained, strikes me (and others, such as liberal legal ethicist Stephen Gillers) as nonpartisan and unobjectionable—was somehow more partisan than Fortas’s role in drafting Johnson’s State of the Union address. Absurd.


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