This Is Not News

Why is it top-of-the-roster news for two days in a row that Antonin Scalia isn’t going to attend the State of the Union address? I’ve serious doubts about whether any of the Justices of the Supreme Court should ever do so. Maybe one who was just nominated, as a gesture of thanks and support for the President who just nominated her and the Senators who confirmed her. But that’s about it. Justice Samuel Alito causing a flap last year for silently shaking his head back and forth during a point he believed the President was misrepresenting a controversial opinion only highlighted the fact that the judicial function is best removed from the fray of politics.

Which is why it ought to have been bigger news that Justice Scalia spoke to the Tea Party Caucus in Congress. The Tea Party Caucus is obviously identified in partisan terms, although a few Democrats attended Justice Scalia’s visit with them. I don’t imply that in giving the talk, Justice Scalia acted improperly — he did not. I imply that by giving this group the favor of his time and attention, he indicates a degree of sympathy with what they have to say. This isn’t improper, but it pushes the limits of propriety. Some people might reasonably perceive bias from his attendance.

I attended a speech Scalia gave once at a Federalist Society function once where he received a hero’s welcome and he clearly enjoyed receiving such treatment (as is only natural); he was careful to not discuss pending or likely cases that would come before him and so he didn’t cross the line into misconduct. But it was odd to hear him castigate or lionize historical decisions in apparently direct opposition to the traditional view of the liberal academy — he offered a full-throated defense of Bowers v. Hardwick and I was both put off by his decision to defend that particular decision, one which I thought was the least defensible in modern Supreme Court history.

I was even more put off by the thunderous applause given by nearly everyone present (myself and a handful of others excepted) at those particular remarks. I’d known that the Federalist Society was a collection of libertarian and conservative lawyers but I hadn’t counted on my fellow libertarians being such a small minority of those present. I left the event thinking that taken as a whole, the event had the feel of partisan pep rally, cheering on the advancement of socially conservative causes in the courts. While no individual element of the night, by itself, struck me as technically improper, taken as a whole it left me with the impression of bias.

Now, I’m not entirely sure that it’s hugely important that Justice Clarence Thomas misunderstood disclosure forms and neglected to include work done by his wife for partisan causes. Unlike the Common Cause advocate int he linked story, I think it’s fair to say that Justice Thomas could have in good faith misunderstood what the forms were asking for — he filled them out the way he did for twenty years and no one complained until now; Justices on the Court disagree on how to interpret things all the time. The news is that his wife works for such causes at all, because that it was creates the potential for a perception of bias.

On examination, it doesn’t look like bias or anything improper, but it’s important that the courts be perceived as unbiased and a part of that perception comes from the willingness of the members of the bench to make disclosures so as to display their impartiality. I see a lot of similarities here to the situation in the Prop. 8 case involving Judge Stephen Reinhardt and his wife Ramona Ripston, and the same standard — one of disclosure but not recusal or a presumption of bias — ought to apply.

I don’t know what the Justices who are thought of as “liberal”* do with their time out in the public, or whether they or their spouses are to be found on the periphery of similar sorts of partisan-flavored activities. If so, it would be just as improper. I’ve seen two other Justices speaking at public events — Anthony Kennedy, a “moderate,” and Stephen Breyer, a “liberal” — and both of them spoke at law school events about matters of academic interest. Why it should be that so much discussion about the political sympathies of these “conservative” Supreme Court Justices should be percolating around in the news, at this point in time, is very unclear to me. There is no reason to withhold similar criticism from the “liberal” Justices were they to behave the same way, and I have simply not looked into whether they are vulnerable to similar kinds of criticism. Perhaps they are, but for whatever reason they aren’t in the news with it right now.

But if I were advising these jurists, regardless of their ideologies, I would tell them to keep as low a political profile as they can, and that the stuff mentioned above is not low-profile. The judiciary should be perceived as a resting place for fairness, objectivity, and equity, not as a political football. And since the media and the political branches of government labor so hard to politicize the judiciary, the judiciary should respond by underlining, whenever possible, that it tries to keep itself about the fray.

In that light, skipping the State of the Union address is not a snub to the President. It is a proper fulfillment of the judicial function and I say, none of the Justices should be there tonight.

* I put their media-assigned ideological alignments in quotation marks because calling them liberal or conservative does not accurately reflect the bulk of the work they actually do. No one outside those particular specialties really cares when they disagree about interpretations of Article 9 of the Uniform Commercial Code or the scope of ERISA pre-emption law. Nor do they always reach the results they do even in the hot-button cases for the same reasons.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.