I am very excited. I may be about to break a big story in the Los Angeles Dog Trainer.
Tomorrow, the Dog Trainer will run an article regarding allegedly improper behavior by Supreme Court Justice Antonin Scalia. Unlike two recent Times articles about Scalia, which reported Scalia’s hunting trips with a litigant or set up by a litigant’s lawyer, this article reports that Scalia gave a speech to a group that had a case pending before the Supreme Court.
With this story — the third alleged impropriety by Scalia reported by the Dog Trainer in recent days — the paper indicates that it is news when a Supreme Court Justice speaks before a partisan group that is litigating a case before the Court. True, many of the experts quoted in this article say Scalia did nothing wrong, but the reporters managed to find some experts who found this significant. As the paper explains:
Supreme Court justices often speak to legal groups, such as bar associations and law school audiences. Some also have also spoken in recent years to legal groups with an ideological bent, such as the conservative Federalist Society or the liberal American Constitution Society. . . . But generally, they avoid any connection with or appearances before partisan or activist groups that fight for those issues in court.
This is where it gets interesting, because I believe the Dog Trainer will soon investigate whether liberal Justice Ruth Bader Ginsburg has done the same thing.
You see, on January 29th of this year, Justice Ginsburg spoke at a dinner co-sponsored by the National Organization for Women’s Legal Defense and Education Fund. Just fifteen days earlier, Justice Ginsburg participated in a decision in a case in which the NOW Legal Defense Fund had filed an amicus brief. In that decision, Justice Ginsburg (and the other Justices) ruled in favor of the NOW Legal Defense Fund’s position. In other words, fifteen days after ruling for the position advocated by the NOW Legal Defense Fund, Justice Ginsburg gave a speech co-sponsored by that very group. Surely Justice Ginsburg’s appearance at this dinner was arranged more than fifteen days in advance. In other words, Justice Ginsburg likely accepted the invitation to speak at the dinner before she ruled in favor of the group co-sponsoring the dinner.
The Ginsburg dinner is clearly problematic under the standards set forth by the “experts” who criticize Scalia in the article:
“This would raise a concern in the minds of a lot of people. And I would say it is not the right way to act as a judge,” said University of Pennsylvania law professor Geoffrey C. Hazard. “He is talking to a group that has a strong view on the kind of issue that will come before the Supreme Court. I think it is preferable for justices to exercise restraint and to back away from groups that are overtly political.”
Hofstra University law professor Monroe H. Freedman agreed. “I think he should have passed on this. He can say he went to honor the cardinal, but that is not sufficient. If it is an adversarial organization working on issues in the public eye and before the court, how could he justify going there? What’s beginning to emerge here is a sense of hubris that he is above the rules.”
NOW is obviously an organization with strong views on public issues which are likely to come before the Court. It stands to reason that these same experts would be critical of Ginsburg’s speaking at a dinner co-sponsored by the NOW Legal Defense Fund. Doesn’t it?
Moreover, Justice Ginsburg’s comments at that dinner were widely interpreted as a criticism of the Bush administration’s handling of the war on terror. (For examples, see here and here.) The Supreme Court has agreed to hear certain cases relating to the war on terror this term. To my knowledge, Justice Ginsburg has not recused herself from these cases. [Note: this paragraph originally incorrectly stated that the Supreme Court had taken cases relating to the Patriot Act this term. In fact, the Court denied certiorari in a Patriot Act case, but has taken up no Patriot Act cases. Thanks to Bob for the correction. The point is not affected by the correction.]
I have sent an e-mail to the Times editors, informing them of these disturbing facts. Since the Dog Trainer doesn’t print stories based on the ideological biases of its editors, you can bet that in the next 24-48 hours, their reporters will be bombarding legal experts with phone calls, asking their opinions regarding Justice Ginsburg’s ethics.
When this story hits the big time, just remember: you heard it here first. I’ll keep you apprised.