The Interocitor

A Tale of Two Justices

The LA Times today rips Justice Scalia for speaking before a conservative group opposed to gay rights before the Supreme Court had issued its Lawrence vs. Texas ruling. It was however, two months after the oral arguments, and Justice Scalia was perhaps no longer wavering on the subject. But whatever.

"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."

Perhaps this is a fair criticism. Perhaps justices should steer well clear of any comments on any subject that might come before the court, even if the issue discussed is one on which the Justice's philosophy is well known. Given the breadth of Court action these days, I don't think that's practical, but if it is the standard nonetheless, shouldn't the Times and other public watchdogs pay the same attention to other justices?

For example, less than 3 months ago, Justice Ginsberg gave a speech before a group of women's rights lawyers, the National Organization for Women's Legal Defense and Education Fund. Here is the AP report:

Supreme Court Justice Ruth Bader Ginsburg said Thursday that people concerned about losing freedom to government anti-terrorism efforts should speak out.

The Supreme Court is taking up several terror-related cases this spring, including challenges to the government detention of terror suspects without legal rights.

Ginsburg, speaking to a group of women's rights lawyers, was asked if people's rights were in danger.

``On important issues, like the balance between liberty and security, if the public doesn't care, then the security side is going to overweigh the other,'' she said.

That would change, Ginsburg said, ``if people come forward and say we are proud to live in the USA, a land that has been more free, and we want to keep it that way.''

Ginsburg, who argued women's rights cases at the Supreme Court several decades before former President Clinton named her to the court in 1993, said ``an active public'' made the difference in the victories of feminism.

Ginsburg, now 70 and one of the more liberal justices, won five of the six Supreme Court cases she argued. She was reunited Thursday with some of the clients she represented during an event held in her honor at the Association of the Bar of the City of New York.

``She was calling to our attention that work in women's rights, civil rights is under threat,'' said Lisalyn Jacobs, who handles government relations for the National Organization for Women's Legal Defense and Education Fund, which co-sponsored the event.

If Scalia is wrong, Ginsberg here is doubly and triply wrong, speaking before advocacy groups that she once was a member of, one that routinely intervenes in Supreme Court cases, and speaking on issues that are active at the court, and obviously will continue to be.

Where is the Times when liberals do what conservatives oughtn't?

UPDATE: Patterico beat me to this somehow.

Posted by Kevin Murphy at March 8, 2004 08:56 AM | TrackBack