Ethics

We learned this week about our latest tea partier ? Justice Scalia.  Congresswoman Bachmann (R MN) invited him to appear before the Congressional Tea Party caucus at a meeting open to other Members of Congress but not open to the public.

I admire Justice Scalia for his intelligence and steadfast adherence to his principles.  Still, I am not sure this meeting is a good idea.  Judicial ethics rules are not violated (most don?t even apply to the Supreme Court), but I still don?t think the meeting is a good idea.

The Tea Party caucus has definite views on issues currently before the Court or likely to come before the Court.  Congresswoman Bachmann and dozens of other Members of Congress have already filed a brief seeking to strike down the new health care legislation.  They have their views on gay marriage, don?t ask don?t tell and many other issues likely to come before the Court.

Justices will have social contact with Members of Congress and other prominent Washingtonians, and the Justices in these social settings may hear views on matters likely to come before the Court.  Hopefully they will also have the good judgment and good taste to know when and how to change the topic of conversation.  The Justices will also hear from Members of Congress more formally through amicus briefs of the sort filed in the health care case.  The question is whether Justices should also meet with Members of Congress behind closed doors in business meetings intended for discussion of the work of the judiciary.  I think not.

Ex-parte communications with a Justice about pending cases or issues to be decided in pending cases are a problem if coming from any source.  Ex-parte communications are a serious problem if coming from the executive or legislative branch of government.  An independent judiciary should make up its mind about cases free of pressure from Congress or the President.

I recall that several of the Justices were offended that the President would criticize a past holding of the Court in a televised State of the Union address before Congress.  They felt that the independence of the judiciary was being undermined by this public chastisement.   Why then would any Justice voluntarily go up to the Hill to hear what Members of Congress have to say in a closed door meeting about their judicial philosophy or anything else relevant to their work on the Court ,and possibly to hear views on particular cases?   Or is judicial independence yet another concept that turns on political perspective rather than principle?