Scalia’s Latest Controversy: Does An Appearance of Impropriety Have to Be Reasonable?

Supreme Court Justice Antonin Scalia is once again under critical fire for appearing to feed a conservative bias. He accepted G.O.P. Rep. Michele Bachmann’s invitation to address the Tea Party Caucus next month, as the group holds its first Conservative Constitutional Seminar. Some are claiming that the meeting is unethical, raising the specter of an “appearance of impropriety.”

Justice Scalia has reason to feel a bit persecuted. As the most vocal of the conservative voices on the Court, the most provocative writer, the most adept advocate, and the most entertaining personality, he attracts extra scrutiny whenever he speaks, and when he appears in front of a conservative group or hobnobs with a conservative leader, he routinely gets accused of being part of the vast Right wing conspiracy. Former Justice Ruth Bader Ginsberg, on the other hand, routinely addressed women’s rights advocacy groups without any outcries of impropriety. Scalia is a lightning rod, no question about it.

Still, the criticism is not without substance. Legal ethics specialist Richard Painter, hardly an ideologue, describes the problem this way:

“Justices will have social contact with Members of Congress and other prominent Washingtonians, and the Justices in these social settings may hear views on matters likely to come before the Court.  Hopefully they will also have the good judgment and good taste to know when and how to change the topic of conversation.  The Justices will also hear from Members of Congress more formally through amicus briefs of the sort filed in the health care case.  The question is whether Justices should also meet with Members of Congress behind closed doors in business meetings intended for discussion of the work of the judiciary.  I think not. Ex-parte communications with a Justice about pending cases or issues to be decided in pending cases are a problem if coming from any source.  Ex-parte communications are a serious problem if coming from the executive or legislative branch of government.  An independent judiciary should make up its mind about cases free of pressure from Congress or the President.”

Judges are not supposed to allow themselves to be lobbied  regarding their judicial decisions, which must be based on the arguments, evidence and testimony presented in court as well as existing law. Even though Prof. Painter agrees that Scalia’s meeting with the Tea Party caucus doesn’t automatically constitute ex parte communication, the fact that the proceedings will be without press coverage means that the meeting will feed suspicion that the conservative Representatives may be influencing future Supreme Court decisions having vital national significance—the constitutionality of the mandatory purchase provision of Obamacare, for example. Here is Rule 1.2 of the American Bar Association’s Code of Judicial Conduct:

Promoting Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

“Promoting public confidence” requires acting in ways the public regards as indicating fairness and impartiality, not what Justice Scalia thinks is reasonable, and perhaps what would be considered appropriate based on an objective assessment of what is trustworthy conduct for a Supreme Court justice. Indeed, I think the issue here is how the public will feel about the conduct of this particular Justice, Antonin Scalia, based on his undeniable influence on the court.

Are public ( as well as partisan and media) fears that the Tea Partiers will influence the judgment of Justice Scalia reasonable? Absolutely not. Bachmann’s description of the planned seminars suggests that their purpose is to educate the Tea Party legislators, who clearly need educating. Justice Scalia will be there to tell them what he thinks, not the other way around, and to the extent the legislators express their views to the Justice, it is fair to assume that they will have no impact on his views whatsoever, since the counter-arguments of some of the finest legal minds in the country seldom sway him in the slightest. Scalia clearly believes that on matters governed by the U.S. Constitution, he knows best, and he certainly isn’t likely to feel enlightened by the novel legal views of prominent Tea Party leaders like Rep. Steve King (R-Iowa), a former construction company owner who claimed that the damages paid to black farmers who successfully argued that they were discriminated against when the government responded to their requests for aid far more slowly than to the similar requests by white farmers constituted “slavery reparations.”

Reasonably or not, Scalia’s meeting with the Tea Party Caucus is going to appear improper to a lot of Americans, and many more will be convinced it is inappropriate because of the rhetoric of the many critics on the left who view Scalia as the arch-enemy of All That Is Good.

Is there anything genuinely improper about it?

No. In fact, anything that can be done to improve the Tea Party Caucus’s grasp of the Constitution, which seems to be tenuous at best, is a national service.

Will it appear improper to a large percentage of the public who don’t know what they are taking about?

Yes. Most of the voting public has no more than a rudimentary understanding of the Court, what its Justices do, and what their opinions mean.

Is this sufficient to make Scalia’s appearance at the meeting at worst a violation of Rule 1.2, and at best, as Richard Painter says, a bad idea?


Finally, is there any chance that Justice Scalia will decide not to attend the meeting because of what he will regard as ignorant and mistaken concerns?

Of course not.




One thought on “Scalia’s Latest Controversy: Does An Appearance of Impropriety Have to Be Reasonable?

  1. Pingback: It’s Time to Impeach Justice Scalia « MasterAdrian's Weblog

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