Justice Antonin Scalia will speak to U.S. lawmakers at a seminar sponsored by the Tea Party Caucus, a group whose organizer, Representative Michele Bachmann, has urged the courts to strike down the new health-care law.
The speech will be open to all members of Congress, though not to the public or press, said Doug Sachtleben, a spokesman for Bachmann. Scalia, whose “original meaning” approach to the Constitution has made him a star in conservative legal circles, will focus on separation of powers, said Kathy Arberg, the Supreme Court’s spokeswoman.
The announcement that Scalia would deliver the speech evoked mixed reactions from experts on judicial ethics. Although jurists often speak to ideologically driven groups -- Scalia regularly appears before both liberal and conservative organizations -- one expert said his latest speech would create appearance problems.
“It certainly adds to the politicization of issues surrounding the judiciary,” said Richard Painter, a University of Minnesota law professor who served as President George W. Bush’s chief ethics officer. “When a highly publicized case comes along, it does not help the Supreme Court for the justices to appear aligned one with one party or the other.”
Other ethics scholars said Scalia’s appearance isn’t problematic so long as he doesn’t deliver a partisan speech.
“Justices are allowed to give speeches on the law and legal reform,” said Ronald Rotunda, a legal-ethics professor at Chapman University School of Law in Orange, California.
Steven Lubet, of Northwestern University School of Law in Chicago, also said he didn’t “see any issues” in Scalia’s decision to appear before the group.
Bachmann, a Minnesota Republican, formed the Tea Party Caucus in July. She said at the time, “Congress should act within the constitutional limitations as given to us by the founding fathers.” The group now has 52 members, all Republicans, and could swell to more than 80 when newly elected representatives take office in January.
The Jan. 24 speech won’t be the first time Scalia has met with a congressional group. In 2007 he spoke at an event sponsored by the Constitution Caucus, a group founded by Representative Scott Garrett, a Republican from New Jersey.
Earlier this year, Sonia Sotomayor met with the Congressional Caucus on the Judicial Branch, a bipartisan group that aims to strengthen ties between Congress and the judiciary and has hosted nine justices.
Scalia’s speech will be the first in a series of seminars that the Tea Party Caucus plans to hold twice a month to refresh members on “basic principles,” Sachtleben said.
The closed-door nature of the event raises the possibility that lawmakers will improperly attempt to lobby Scalia about issues that are before the Supreme Court, Painter said.
“Steps should be taken to make sure that this event is not a venue for ex-parte communications by members of Congress with a member of the court,” said Painter, who during his stint in the Bush administration worked on the Supreme Court nominations of John Roberts and Samuel Alito.
Last month, Bachmann joined 62 other lawmakers in signing a court brief seeking to overturn President Barack Obama’s health care overhaul. A federal judge this week declared part of the law unconstitutional, and advocates on both sides they expect the Supreme Court will ultimately decide the issue.