Justice Scalia’s Speech to Closed-Door Tea Party Caucus Session Is Inappropriate Political Activity

Appearance could provide grounds for recusal in upcoming cases; disqualification statute needs an upgrade

Common Cause today criticized Justice Antonin Scalia’s decision to address a closed-door session of the House Tea Party caucus as political activity that undermines public confidence in the U.S. Supreme Court.

“The American people expect impartial justice from the Supreme Court,” said Bob Edgar, President and CEO of Common Cause, a non-partisan watchdog group. “The last thing we need in these divisive times is Supreme Court justices appearing to be allied with a political faction.”

“Justice Scalia’s acceptance of Rep. Bachmann’s invitation shows poor judgment and could lay the ground for his recusal in future cases, such as court challenges to President Obama’s health care reform law,” Edgar said.

The Judicial Code of Conduct bars federal judges from engaging in political activity, including “mak[ing] speeches for a political organization” or attend[ing].a dinner or other event sponsored by a political organization.” See Canon 5, Code of Conduct for U.S. Judges.

The code applies to all federal judges, but is not binding on the nine Supreme Court justices, Edgar noted. Nonetheless, federal law on disqualification of judges is binding; it requires that “[a]ny justice.of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned..” 28 U.S.C. ‘ 455.

“It’s clear that Congress intended Supreme Court justices to live by the same ethics rules as every other federal judge,” said Arn Pearson, an attorney and Vice President of Programs for Common Cause. “An appearance of bias is just as damaging to the nation at the Supreme Court level – perhaps even more so — as it is at the trial level.”

The federal disqualification law was enacted in 1974 after a series of judicial scandals, most notably a controversy over Justice Abe Fortas’s role as a confidant and advisor to President Johnson, whose orders and legislation he would have to review.

“It’s time to upgrade the law to include the Judicial Conference’s rules on political activity by judges,” Pearson said. Those rules were adopted after the law’s initial passage in 1974.

“Common Cause is calling for immediate legislation to ensure that the Code of Conduct’s ban on political activity applies to the high court,” Edgar said. “Unfortunately, some justices seem to think they are above the ethics rules. We shouldn’t have two standards for what is okay and what isn’t for federal judges. I think our court of last resort is getting way too politicized.”

Last week, Common Cause asked the Department of Justice to investigate whether Justices Thomas and Scalia should have recused themselves from the Citizens United case, which ended a longstanding ban on corporate spending to influence elections, because of potential conflicts of interest. In a letter to Attorney General Eric Holder Jr., the group cited the justices’ appearances at secretive retreats sponsored by Koch Industries, a firm that stood to benefit from the Citizens United decision, as well as Virginia Thomas’s financial interest in the outcome given her role as CEO of Liberty Central, a 501(c)(4) group that used corporate money to target members of Congress in the 2010 elections.

Common Cause also asked the U.S. Judicial Conference to look into Justice Thomas’s failure to disclose his wife’s income at the Heritage Foundation and Liberty Central over a seven-year period, as required by the Ethics in Government Act. The Judicial Conference is required refer willful violations of the Act to the Attorney General.

“It’s high time we restored the appearance of fairness and balance to the high court,” Edgar said.