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Scalia's right to speak

January 06, 2011

Not all opinions by Supreme Court justices are delivered from the bench. Justices who have distinctive views of the Constitution also expound them in public settings and in print. For example, Justices Stephen G. Breyer and Antonin Scalia have outlined their approaches to the Constitution in books aimed at the general reader.

Given that reality, it seems priggish to object to the idea of a justice sharing his views with members of Congress rather than law students or a bar association. Yet Scalia is being criticized for accepting an invitation from Rep. Michele Bachmann (R-Minn.) to speak on Jan. 24 to any member of Congress who wants to show up. We find it hard to share the outrage.

We wish the invitation had come from someone other than Bachmann, the founder of the House's Tea Party Caucus, who inhabits the extreme right of the Republican spectrum. Her notoriety detracts from what Scalia actually will do: deliver a lecture -- no doubt an opinionated one -- about the separation of powers.

Some critics go further and argue that Scalia, in accepting the invitation, has created the impression of an alliance between conservatives in Congress and conservatives on the court. A variation of that argument involves legal challenges to the healthcare law. One ethicist told The Times that because Bachmann wants to see the law struck down, a presentation by Scalia would create "the appearance of partiality."

These objections strike us as far-fetched. We have no doubt that Scalia's conservative views were a factor in Bachmann's decision to invite him. But that doesn't mean that by accepting, he is endorsing her agenda or promising by a nudge and a wink to vote her way. Even so, if some representatives worry about Scalia's lecture being interpreted as a "tea party" event, they can dispel that impression by showing up.

We disagree with many of Scalia's views, such as his archaic belief that women aren't protected against discrimination by the 14th Amendment. Still, he is a learned and provocative legal thinker. If Congress is going to conduct an adult education course on the Supreme Court, his views belong in the curriculum. But so do those of his liberal colleagues. If Bachmann won't extend an invitation to them, one of her colleagues should. Meanwhile, let Scalia speak.

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