Justice Scalia Shouldn't Speak to the Tea Party Caucus

There is a big dust-up about Justice Scalia speaking today before House Tea Party Caucus. The controversy comes mostly from the fact that this is Michele Bachmann’s newly formed group.  

Michele Bachmann, in case you’ve missed her many gaffes on YouTube or don’t watch Comedy Central, is the Republican Representative for Minnesota's sixth Congressional district. She’s been there since 2007, and is only the third woman and the first Republican woman from Minnesota to represent the state in Congress.

What has really brought her attention on the national scene, however, is her wacky way with words. She has tried to make a connection between swine flu and “Democrat” Presidents (never mind the fact that the 1976 outbreak happened under Gerald Ford, not Jimmy Carter). She blames the Great Depression on the “Hoot-Smalley” Act, which doesn’t exist. (Herbert Hoover had signed the “Smoot-Hawley” Act into law in 1930.) There is much more, but you get the idea. 

Long before Bachmann became infamous for her outrageous statements, she was just a gay-bashing, God-fearing politician in the Minnesota State Senate. From hiding in the bushes at gay rights rallies to bragging about the marriage-ability of her 13-year-old daughter, Bachmann said and did things that caused even some supporters to call her statements “psycho-talk.”

Fast forward to 2011: Bachmann is a founder of the Tea Party Caucus and has announced that Justice Antonin Scalia will give the keynote address today, at the caucus' inaugural “Conservative Constitutional Seminar.” Scalia, whose “original meaning” approach to the Constitution has made him a star in conservative circles, will focus his talk on separation of powers.

I have heard Justice Scalia speak at least a dozen times, on topics ranging from constitutional interpretation, the fourteenth amendment, and the power of the English language. I can assure caucus members that they are in for a treat. He is a compelling, enthusiastic and entertaining speaker. He cares deeply about his subject matter, and he will often take questions from the audience, entertaining respectfully even those views with which we certainly know he disagrees. He is also very funny.

At the same time, he is always very careful to avoid discussing specific cases, to tip his hand, to commit himself in anyway that will create a conflict of interest. I have considered it a great privilege to be able to hear from Justice Scalia (and the many other Justices I have heard over the years). I have to admit, however, that I have often marveled that their status as members of the nation’s highest court does not limit their ability to address public audiences.  

None of them has ever said anything that compromised their judicial integrity, however. Indeed, when a question threatens to take them in that direction, they politely decline. Justice Scalia is most careful about this (I admit this fact, even though I rarely agree with anything the good Justice says or writes). 

Why Justice Scalia accepted today's invitation, however, is a bit baffling. Clearly, he likes to talk. When he is not busy haranguing some unlucky lawyer during oral argument, Justice Scalia is busy giving speeches. He has been speaking — and writing books, too — for the entirety of his tenure since 1986. But with this latest decision to address the House Constitution Caucus — or as the media prefers to put it, the Tea Party — he surely anticipated the criticism.

While the speech will be open to all members of Congress (a fact conveniently overlooked by his detractors), it will not be open to the public or press and has, therefore, evoked strong condemnation, even though jurists often speak to ideologically motivated organizations, and even though Justice Scalia often appears before both liberal and conservative groups.

Simply put, this appearance creates appearance problems. It adds to the politicization of the judiciary. And so, I am forced to consider — with all due respect — whether Justice Scalia should be speaking to the caucus, and whether Justices of the U.S. Supreme Court should speak publicly, at all.

I had previously thought that each invitation could be left to the individual Justice, trusting that his or her integrity would be enough to secure the legitimacy of the Court. Legitimacy, however, is as much about appearances as it is about the reality of what, in fact, happens behind closed doors. Today’s meeting will feed suspicion that the conservative members of Congress may influence future Supreme Court decisions of vital national significance — the constitutionality of the recently enacted federal health care law immediately comes to mind.

Of course, argue Scalia supporters, the purpose of the meeting is to educate members of Congress about the Constitution. 

I am the first to agree that our representatives in Congress — especially the Tea Partiers — need educating about the Constitution. I realize Justice Scalia will be there to tell them what he thinks about Constitution — not the other way around. And to the extent lawmakers express an opinion, they will have little impact on Justice Scalia. After all, the arguments of some of the best legal minds in the country seldom persuade him. Justice Scalia isn’t likely to be swayed by the views of Michele Bachmann and her ilk. 

We could solve the whole problem by permitting members of the press to attend. But if the press doesn't cover the speech, is there a sufficient protection against the appearance of impropriety? Likely not. 

In exchange for the privilege of wearing the robe, perhaps a U.S. Supreme Court Justice should remain silent in venues other than that vaulted courtroom. And perhaps those few members of the public who, until now, have been so fortunate to enjoy a free exchange of ideas with the Justices must be willing to give up that privilege in a barter for the greater legitimacy of the decisions they render.

When a highly publicized case comes along, it will not help the Supreme Court for the Justices to appear aligned one with one party or the other, or to appear to have any allegiance to a group before he or she has appeared as a speaker. In a post-Bush v. Gore world, even the appearance of politicization is the last thing the Supreme Court — or the country — needs. 

Jami Floyd is an attorney, broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues.