Strong Tea

Rep. Michele Bachmann, founder of the Tea Party Caucus in the House of Representatives, promised that she would provide classes on the Constitution for her colleagues, particularly her newest colleagues.  And there are plenty of them in the next Congress.  Bachmann is one Tea Partier who aims to deliver on her promises, and apparently, she’s positioned to deliver in a big way:

Justice Antonin Scalia has agreed to deliver the first lecture, ironically on the topic of the separation of powers.

This development is odd and interesting for all kinds of reasons.

First, there is this whole SEPARATION OF POWERS THING.  The Court and the other branches aren’t supposed to coordinate behind the scenes or lobby each other.

Chief Justice Earl Warren reported, years later, that he was invited to dinner at the White House when Brown v. Board of Education was on the docket, and resented being lobbied, ever so gently by contemporary standards, to consider the well-being of the white children in the South.  President Johnson worked to keep his consultations with Justice Abe Fortas secret, expecting (correctly) controversy if the meetings were ever public.  Much more recently, Justice Alito, taken to task for muttering “not true” during President Obama’s State of the Union address, announced that he thought it inappropriate for the President to chastise the Court at the occasion, particularly when protocol demanded that the Justices sit on their hands and take it all stoically.

It’s hard to imagine Justice Scalia coaching one faction in Congress on arguments or policies that would pass his Constitutional muster.  It’s also hard to imagine Justice Scalia refusing to allow members of Congress who weren’t members of the Tea Party to benefit from his Constitutional lessons.

Second, there is the matter of maintaining an appearance of objectivity.  In addition to wearing those basic black robes, sitting Justices generally refrain from explicit political activity.  Virginia Thomas’s recent announcement that she was curtailing her Tea Party activities seems much less likely to be about her loss of political faith or energy than about maintaining some appearance of propriety for her husband, Justice Clarence Thomas.

Third, it’s kind of amazing that Michele Bachmann has that kind of pull.  The other instructors mentioned for the course are renowned for their seriousness and expertise only among the true believers, not among professional historians or legal scholars.  Justice Scalia is a major get.

Question: Does all of this undermine any notion of a legal system in which rulings are based on law rather than exclusively political orientation?  (By the way, other recent decisions play into this vision.  It’s been widely observed that a Bush appointee to a Federal Court has invalidated the insurance mandate provision of President Obama’s health care reform, while two Clinton appointees have rejected that argument. ) Our textbooks, judicial nominees’ testimony before Congress, and our Constitution would have us believe that at least some of these judges think about the law and the Constitution in making such decisions.

About David S. Meyer

Author and professor of Sociology and Political Science at the University of California, Irvine
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