Fighting Words

Leave Scalia alone.

Illustration by Robert Neubecker

Antonin Scalia is being clobbered yet again this week, in what’s become the favorite parlor game of the Los Angeles Times: Pin the alleged bias on the Supreme Court justice. According to a report in yesterday’s paper, Scalia addressed an antigay-rights group in Philadelphia at a $150 a plate dinner last spring—shortly after the high court heard argument in the gay sodomy case Lawrence v. Texas —and just before the court issued its decision. What the connection might be between his presence at that Philadelphia event and the Texas sodomy case is never quite spelled out in the Times piece. The implication that there is a connection at all seems unfair. Evidently, simply attending an event sponsored by people who feel strongly opposed to gay rights is now enough to create an appearance of bias in the justice and to launch yet another lengthy discussion of Scalia’s shaky legal ethics. An ethical standard that suggests Scalia should quit attending church as well.

I believe Scalia properly recused himself from hearing the Pledge of Allegiance case pending this month and that he ought to think seriously about staying out of the Cheney appeal, based on his cavortings with the vice president. I also believe that Scalia’s whole enfant terrible act—this tendency to dance too close to the line on controversial topics—is a tactical mistake, both for him and for the legitimacy of the court. But someone at the Times is making a terrific mistake if he or she believes that this relentless scrutiny of Scalia’s extracurriculars will result in either a better judiciary or, more cynically, in better results in controversial cases. This protracted get-Scalia campaign has begun to call the integrity of the whole Supreme Court into question. And it’s more than slightly ironic given that the weapon of choice—the court’s conflict-of-interest rules—were first drafted in order to preserve public confidence in the courts.

According to the report in the Times, Scalia did not profit personally from the Philadelphia speech (he even insisted upon paying for his own parking). Nor did the event raise any funds for the advocacy group in question. Scalia’s remarks never touched on the Texas sodomy case or on the Philadelphia gay-rights ordinance being challenged in a separate lawsuit by the group, the Urban Family Council.

So, what was wrong with his conduct? According to the Times, Scalia may have violated the Judicial Code of Conduct’s ban on judicial attendance at events that might “reflect adversely upon the judge’s impartiality.” But the judicial conduct rules don’t apply to Supreme Court justices. The most concrete problem, according to the various legal ethicists who’ve opined on this newest Scalia infraction, is that the advocacy group in question is involved in an antigay-rights lawsuit that might someday be heard by the high court. Of course, if Scalia is not allowed to address any group that may hypothetically find itself a litigant before him some day, he is pretty much consigned to eating alone for the rest of his career.

What the critics really don’t like is the idea of Scalia hobnobbing with ideologues and activists. He suddenly appears biased because he likes to hang out with folk who feel the way he feels about things. That criticism is unfair, because it questions Scalia’s neutrality based not on anything he’s said about a pending case (which was, presumably why he had to recuse himself from the Pledge of Allegiance appeal), but based on whom he speaks to. You don’t need to be a legal scholar to understand that this kind of guilt by association usually reveals paranoid McCarthyism as opposed to factual guilt. It’s not unusual for conservative justices to speak to Federalist societies or for liberal justices to give speeches to the American Constitution Society. Does anyone really believe that Scalia spends his time shooting hoops with ACLU interns? The fact that justices, and the rest of us, like to speak to, write for, and dine with people who agree with us ideologically may make us slightly gutless. But it doesn’t make us biased.

Putting aside the question that plagues Scalia in the Cheney case—of whether fraternizing with a party to pending litigation creates an appearance of bias—there is a question underlying the Philadelphia speech that is worth exploring: Do all but the most banal speeches make a judge look biased? The federal recusal statute, 28 USC 455 (a), demanding recusal whenever a judge’s impartiality “might reasonably be questioned,” is so vague as to provide virtually no clue as to where the line between having-a-life and evincing-impermissible-bias might be. Because the statute is entirely self-policing at the Supreme Court level, different justices can reach wildly different conclusions regarding what sorts of speeches might appear improper. This makes us anxious. We’d prefer a uniform standard. But for reasons I’ve laid out elsewhere, it would be a disaster for Congress to start policing Supreme Court recusals. Findlaw’s Vickram Amar does a more eloquent job of explaining it here. But the project of trying to define the types of speeches which evince bias is still useful.

In an insightful Legal Affairs column from 2002, Emily Bazelon explores the problem of judicial speeches, and how impoverished we would be if sitting judges were constrained to offer little more than knock-knock jokes when they speak off the bench. Looking back over the Supreme Court’s biggest blabbermouths, Bazelon reminds us that:

Thurgood Marshall denounced Supreme Court decisions restricting prisoners’ rights. Warren Burger advocated for prison reform, appearing on Nightline and taking an influential group of Americans to visit Scandinavian prisons. Harry Blackmun discussed the opinion he wrote in favor of abortion rights in Roe v. Wade. Lewis Powell expressed regrets about having cast the swing vote in Bowers v. Hardwick, the decision that upheld the prosecution of a gay man under Georgia’s sodomy law. Sandra Day O’Connor, a swing vote in many death-penalty cases, made news when she said that innocent people were likely being executed and questioned whether poor defendants were getting decent representation from court-appointed lawyers.

I agree with her that I’d rather have these biases (or predispositions) out in the open than swept under the carpet. The alternative to these speeches isn’t neutral judges. It’s simply public cluelessness. Bazelon goes on to offer a useful working rule to govern judicial speeches: “Judges should be discouraged from speaking only when what they say gives them a personal stake in the outcome of a case before them or on its way to their courtroom.” In other words, if a case is pending, shut up. If you have a stake in the outcome, shut up. But we need stop hounding judges for who’s in their audience.

In a perfect world, judges would try not to bash the judiciary in their speeches. In a perfect world, they’d use these speeches to elevate the tone of political discourse. And in a perfect world, I might also ask that justices limit their speeches to scholarly, rather than advocacy groups, as suggested here. But in general, I’d argue that more speech is better than less speech, and that more honesty is better than less. Increasingly, it seems like the worst thing anyone can say about Antonin Scalia is that he is honest and intellectually consistent. He has so many other more interesting faults, I assure you. And if we let him speak without hounding him, we’re bound to find more of them.