Justice Antonin Scalia’s appearance at a meeting organized by the House Tea Party caucus and Rep. Michele Bachmann (R-Minn.) on Monday provoked new cries from liberals and some academics that conservative justices are shedding the appearance of impartiality.
The session, part of what Bachmann calls a series of constitutional seminars, was closed to the media. Lawmakers said Scalia advised them to read the Federalist Papers and to follow the Constitution as it was written.
University of Texas law professor Lucas A. Powe, a historian of the liberal Warren Court, said Scalia’s appearance made the court look partisan. “He is taking political partisanship to levels not seen in over half a century,” Powe said.
But others disputed Powe’s characterization. “I don’t see the concern over that,” said University of Virginia law professor A.E. Dick Howard. “The ‘tea party’ members may learn something from hearing a justice talk about the Constitution.”
Bachmann stressed that the meeting was open to House members from both parties. About 50 lawmakers attended, she said, at least three of them Democrats.
Rep. Jan Schakowsky (D-Ill.) said Scalia outlined his basic judicial philosophy, which she said he described as opposing the idea of a “living Constitution.” He told lawmakers to try to amend the Constitution rather than enact laws that push for a new interpretation, she said.
“This is a discussion going on at a very, very high level right now — lots of Latin phrases from lawyers that I’m not sure what they are,” Schakowsky said. “This was pretty dry, actually.”
The meeting came as Republicans amped up arguments targeting the constitutionality of the healthcare law, which several states have challenged in court. The legislation’s fate is likely to be decided by the Supreme Court. Bachmann said the healthcare law’s constitutionality was not discussed.
Justice Clarence Thomas, too, has been criticized over the healthcare issue. In 2009, his wife, Virginia, organized a tea party group called Liberty Central, which urged conservatives to fight for the repeal of “Obamacare.”
Scholars and historians say Tuesday’s State of the Union address poses another test for the court and its commitment to the appearance of independence and impartiality. Some justices are expected to skip the annual event, having expressed reservations about attending what Chief Justice John G. Roberts Jr. has called a “political pep rally.”
That leaves the possibility that only the liberal justices will attend, thereby creating a visual symbol of a court divided along partisan and ideological lines.
“That would be very unfortunate,” said Stanford law professor Michael McConnell. “Anything that accentuates there are Democratic or Republican justices is not good for the court. It would be fine if none of them went, or all of them went. But if only the Democratic appointees go, it would look like the court is divided and partisan.”
Last year’s State of the Union speech occurred days after the high court struck down long-standing laws that barred corporations and unions from funding election ads. The 5-4 ruling led to a boom in spending by conservative groups that helped Republicans capture control of the House in November.
Justice Samuel A. Alito Jr., who shook his head in disagreement as Obama spoke last year, will be absent Tuesday evening: He accepted an offer to teach law classes in Hawaii this week. Chief Justice Roberts and Justice Anthony M. Kennedy heard Obama’s speech last year, but court officials could not say Monday whether they planned to attend this year.
Also on Monday, the Supreme Court released amendments to Thomas’ financial disclosure forms reflecting his wife’s prior employment — including 11 years at the Heritage Foundation, a conservative think tank.
The amendments, stamped “self initiated,” were filed Saturday, one day after the nonpartisan watchdog group Common Cause raised the issue in a letter to James C. Duff, director of the Administrative Office of the United States Courts. In the box for a spouse’s income, Thomas had checked “none.”
Federal judges, including justices on the high court, are required to disclose the source of spousal income.
The Administrative Office “brought the matter to Justice Thomas’ attention and he immediately amended his reports,” Duff wrote in a letter to Common Cause on Monday.
Kim Geiger in the Washington bureau contributed to this report.