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Scalia Takes on John Jay

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Antonin Scalia Disagrees With Founder John Jay!

Justice Scalia has recently accepted an offer by Michele Bachmann to teach some sort of Constitutional seminar to the Tea Party caucus. I’m not asking why Bachmann asked. I am wondering why in the world that Scalia, a noted Constitutional orginalist who prides himself in following the views of the founders, would dare accept.

The Supreme Court has a long and distinguished history of not giving opinions in advisory roles, even in extreme circumstances. The reasoning goes back to John Jay’s letter to George Washington in response to his asking for an advisory opinion. When pressed, Jay and other justices responded, and discussed their reasoning at some length (see bottom of the page here):

    These being in certain respects [470 U.S. 675, 728] checks upon each other, and our being judges of a court of the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.
    “We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.

Now, obvious this was directed at the executive branch, and not the legislative branch. And this was asking for a formal decision, not something informal.

But neither of those distinctions is decisive in terms of the principle here. The Constitution requires that legislators as much as members of the executive branch exert their own “prudence, decision and firmness.” In short, the separation of powers inherent in the Constitution requires that members of the legislative branch act make their own decisions, free from the Constitutional advice of the other branches. (or even shorter: Michele Bachmann does not know the Constitutional well enough to know that her request highlights her ignorance. It’s like irony squared).

As for formality, this is not mere advice or insight. This is a formal group within Congress being taught the Constitution by a sitting member of of the Supreme Court. This is unprecedented. Perhaps the most comparable situation is Chief Justice Fred Vinson advising Truman that it would be legal to seize the steel mills during the Korean War. This has been looked back since as a reckless legal position and questionable ethics at best. And worse, it turned out to be epically wrong, as not only did the Court find the seizure unconstitutional, but Justice Jackson wrote perhaps the most important legal decision of the past century, and certainly the most important concurring opinion of all time. But even if Vinson had been right, the Constitution trusts the President (and in this instance Congress) to make their decisions, and for the Supreme Court to judge these decisions only when it is pressed upon them in a case or controversy.

This is why we don’t have justices answer every single question during appointment hearings: we don’t want their objectivity in future cases to be in question. We do want potential justices to discuss their philosophy, but only to the extent that Congress can vet them… that is their Constitutional role. In the view of the Constitution, it is crucial that Congress itself have Constitutional views in approving justices. Having justices teach the Constitution to Congress only creates a self-reinforcing truism. Scalia teaches Congress -> Congress appoints people with the same views -> those people teach the next Congress, etc. What Scalia is doing is essentially reputing any public role in Constitutional interpretation, particularly one firmly established within the framework of the Constitution. This is extremely dangerous and authoritarian.

Another argument may be that this is no different than a bipartisan group, the Congressional Caucus on the Judicial Branch, occasionally hearing from Supreme Court justices. That argument does not hold up to the smallest scrutiny. The purpose of the group and Sotomayor’s speech were not to educate members on the Constitution in general (or worse, a specific view of the Constitution) but rather to just promote communication between the branches, and if anything, to focus on structural problems of federal courts (such as chronic understaffing). Indeed, the stated purpose, from Republican Judy Biggert, is not to deal with pressing Constitutional issues, but to just have a broad free ranging discussion.

That does not sound at all like the seminar described by Bachmann that Scalia will be doing, as instead Scalia will be teaching the Constitution to members – at least that’s the stated purpose. This is far more dangerous.

First, the Court has a long history of officially staying away from Constitutional discussions that are not necessary for them to decide. See, for instance: the political question doctrine, ripeness, mootness, standing, Pullman abstentions, etc. Not to mention cases where the Court simply declines cert.

Second, the Court can be wrong. This cannot be overstated, and would apply just as much as if it were a liberal justice teaching the seminar as a conservative justice. The comparison

In a recent article, Dahlia Lithwick and Sonja West discuss how often a Justice should speak out on issues, concluding that they should do more off the bench then they do while on it. I’m only concerned with the latter here (if Scalia were retired, I would have no issue here). Lithwick and West describe the basic contours of judicial ethics:

One viewpoint—let’s call it the old school—holds that justices should say nothing that isn’t contained within the four corners of a written opinion. When justices pontificate off the bench, it sows confusion and controversy and undermines the impression that jurists all float above the fray. The other side holds that transparency is always better than mystification and that so long as there is no real threat to the court’s impartiality in a particular case, there is great value in lifting the veil of secrecy around the workings of the court and revealing the men and women hiding out behind the red velvet curtain.

. . .

Even outside the courthouse, however, sitting justices should exercise serious caution before going off-script. The more the commentary involves matters that have been, are, or may be before the court, the more suspect it becomes. Caution lights should flash over any remarks that cast doubt on the validity of a decision, a colleague, or the judicial process. Whether it’s an interview, book, or speech, these nine jurists represent the court, regardless of where they are and to whom they are speaking. They should also consider that they represent that court whether or not the proceedings are recorded, televised, or just tweeted by someone in the audience. We mere mortals might get to blab about what the court should or shouldn’t do, but we have no real power—the justices do. And as Spider-Man continues to remind us, with great power comes great responsibility, and sometimes that responsibility is to hold your Article III tongue, even when you’d rather not. …

What Scalia is doing here throws these principles (and the entire historical divide) out the window. Teaching the Constitution to a political group politicizes the entire judicial process (or rather, continues that process which began in Bush v. Gore, but that’s another issue entirely and this post is already too long). Anyone upset with Bush v. Gore should be just as upset here.

The only other judge to approach this level of partisanship that comes to mind is Samuel Chase – a firebrand who ended up being impeached for severe partisanship (such as campaigning so much that Court sessions had to be delayed. But his impeachment (though he was not convicted) was surely an ethical sanction of his conduct.

Lastly and importantly, there’s only one defense to these charges: that the classes are so basic and banal as to be harmless regarding any ethical or separation of powers issues. But if that’s the case, isn’t Bachmann just saying that the Tea Party Caucus is a bunch of idiots?

Scalia Should Be Worried


Written by John Whitehouse

December 17, 2010 at 2:05 pm