Justice Scalia and the Tea Party
It's times like these when I wonder whether Justice Scalia's direct line to the Founders is functioning as well as he seems to think it is.
Justice Scalia is speaking today at the Conservative Constitutional Seminar, hosted by Michele Bachmann's Tea Party Caucus. He's actually speaking on the separation of powers. That's like invading a small country so you can talk to them about non-violent cooperation. I worry that if the premise and the speech ever shake hands, they'll both disappear.
I miss the days when you could have a tea party event without Justice Scalia showing up. First Michele Bachmann invites him to address the Tea Party Caucus. Now, little girls and boys get their dolls or adjusted Transformers out ("This one turns into a Wedgwood tea service!"), bring out the teapot, announce that the event is closed to the press, and, boom, there's Justice Scalia knocking at the door demanding that he be allowed to give an address on the separation of powers.
I know the guidelines for Supreme Court Justices' public appearances currently run something along the lines of, "Do pretty much whatever you would like, as long as you can imagine that one of the Founders might have done something similar." But the Founder Scalia seems to be emulating right now is James Otis -- who went "harmlessly insane" during his later years, emerging only to argue the occasional legal case. The only difference is that Scalia's apparent insanity is far from harmless.
No one is naïve enough to pretend that the justices shed all their political beliefs, inklings, and inclinations once they don the sober black robes of the nation's highest court. But they could at least have the courtesy to behave as though they understood that this was what was expected of them.
Judicial impartiality may be unrealistic, but it is a cornerstone of our democracy. It's one of our central idealistic and somewhat fictional beliefs, like the idea that the Electoral College represents the will of anyone, anywhere, or that the Star Spangled Banner is singable. And behavior like Scalia's threatens to undermine this valuable ideal even more than it has already been undercut by the polarizing judicial appointment process.
Of course, Justice Scalia may see his behavior as perfectly acceptable and impartial. But as Judge Richard A. Posner observed in "How Judges Think," "We use introspection to acquit ourselves of accusations of bias, while using realistic notions of human behavior to identify bias in others." And it's the second standard to which Justice Scalia ought to be held.
That's why this speech is such a bad idea. Based on realistic notions of human behavior, it seems odd for Justice Scalia to gallivant off to this conference. Just because anyone could theoretically attend doesn't mean they will -- I am holding a summit for Excruciatingly Lax Interpretation somewhere in the Himalayas on a promontory that looks vaguely like Thomas Jefferson, and I invited the whole Congress. So, theoretically, everyone could be there.
And it's not exempt from scrutiny simply because it's behind closed doors. Unlike Schrodinger's Cat, if you don't look in on a conference, it still happens. And it's a shame that it will.
Also, Justice Scalia, if you really would like to talk to a group about the separation of powers, maybe don't talk to a group that is composed of people you are supposed to be separated from.
This is not becoming conduct. But it's becoming standard.
| January 24, 2011; 12:26 PM ET
Categories: Congress, Epic Failures, Petri, Seems Suspect, Tea Party | Tags: America, oops, supreme court
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