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Scalia to talk about Constitution to House members

The Supreme Court justice's decision elicits criticism that he's showing 'exceedingly poor judgment.' Some worry the court is injecting itself into partisan politics.

January 05, 2011|By James Oliphant and David G. Savage, Washington Bureau
  • Justice Antonin Scalia has rarely shied away from controversy in his 25 years on the Supreme Court.
Justice Antonin Scalia has rarely shied away from controversy in his 25… (Stephan Savoia, Associated…)

Reporting from Washington — The decision by Supreme Court Justice Antonin Scalia to accept an invitation from Rep. Michele Bachmann (R-Minn.), the founder of the House's Tea Party Caucus, to speak to incoming House members about the Constitution is drawing fire from some who worry the court is injecting itself into partisan politics.

The meeting "suggests an alliance between the conservative members of the court and the conservative members of Congress," said Jonathan Turley, a law professor at George Washington University, who said Scalia had shown "exceedingly poor judgment."

He said the association of Scalia, an outspoken conservative, with the bombastic Bachmann, who once accused then- Sen. Barack Obama of being "anti-American," could contribute to the high court becoming overly politicized.

But Bachmann's office said that Democrats and Republicans were welcome to attend the Jan. 24 speech. Also, it is not unprecedented for a sitting Supreme Court justice to confer with the legislative branch. Several justices have met in off-the-record sessions with the bipartisan Congressional Caucus on the Judicial Branch.

Repealing the massive healthcare overhaul is the No. 1 issue for the new GOP-controlled House, with a repeal vote scheduled for next week. But legal challenges to that law are also working their way through the federal courts and could reach the Supreme Court as early as next term, with Scalia in a position to help decide whether it survives.

"I don't think it is appropriate for justices to meet with members of Congress, particularly in this highly partisan environment," said Richard Painter, a law professor at the University of Minnesota who served as a chief ethics officer in the George W. Bush administration.

"Michele Bachmann wants the healthcare law to be struck down by the courts. This is not about a particular ethics rule, but rather about common sense. This creates the appearance of partiality and undermines the credibility of the court."

In his 25 years on the court, Scalia has rarely shied away from controversy. This week, comments he made in an interview with a California legal magazine, in which he argued that the Constitution did not protect women from discrimination, gave rise to a protest on the left.

Supreme Court spokeswoman Kathy Arberg said Bachmann invited Scalia to speak to members of the House about the Constitution.

"She came to see him, and he accepted the invitation," she said. "His topic is 'Separation of Powers.' " She noted that Bachmann had described the meeting as bipartisan and "open to all members of Congress."

Scalia speaks regularly at colleges and law schools as well as to conservative legal groups such as the Federalist Society.

Several experts in legal ethics questioned whether a justice should speak to members of Congress if the lawmakers were identified with just one party.

"In my view, a judge must take care not to speak only to groups on one side of the partisan divide," said Stephen Gillers, a law professor at New York University. "I have no problem with such a talk so long as he avoids excessive identification with the Republican agenda."

But M. Edward Whelan, president of the Ethics and Public Policy Center and a former clerk to Scalia, disputed the criticism.

"Does he think it's improper for any justice ever to speak to any group of members of Congress who might be perceived as sharing the same general political disposition?" Whelan said. "My guess is that, schedule permitting, Scalia would be happy to speak on the same topic to any similar group of members of Congress who invited him."

The Supreme Court and Congress operate as independent branches of government, but since President Obama's election two years ago, the two seemingly have grown more entangled.

Another member of the court, Chief Justice John G. Roberts Jr., figured into the mix Tuesday. At the request of the new House speaker, John A. Boehner of Ohio, Roberts swore in several Boehner aides in a private ceremony intended to symbolize the new House's fealty to the Constitution. GOP members will read the document aloud on the House floor Thursday — and House leaders say that every new piece of legislation will have to pass constitutional muster before it can be voted upon.

Last year, Virginia Thomas, the wife of Justice Clarence Thomas, started a "tea party"-affiliated political action group intended to help elect conservative congressional candidates. Thomas later stepped down as president of the group amid criticism.

But critics say Obama crossed a line and politicized the court by using his State of the Union address to publicly attack its ruling in the campaign finance case known as Citizens United.

joliphant@latimes.com

david.savage@latimes.com

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