Impeach Scalia!

In 1791, the First Congress passed the law establishing the Bank of the United States. President George Washington was uncertain as to whether the Bank was Constitutional, and indeed, people disagreed about this question quite a lot. Given his believe about how to use a veto, i.e. if and only if the law in question was unconstitutional, this was kind of an important question for Washington. His Secretary of State, Thomas Jefferson, had an ingenious idea: it just so happened that there were six eminent lawyers on hand in the capital who had been particularly chosen to decide whether things were constitutional or not. So Jefferson sent a letter to the Supreme Court requesting that they give their opinion as to whether or not the Bank was Constitutional, and several dozen other legal questions.

Chief Justice John Jay wrote back. And it was a reasonably scathing reply. Jay said that what Jefferson asked was improper and impossible. The President could (it said it in the Constitution, after all) ask the heads of departments for opinions, but the Supreme Court could only decide cases or controversies. For the Court to issue an advisory opinion was beyond its powers. This letter has been called the actual first instance of judicial review, since the Court decided that an action of another branch of government, i.e. Jefferson's asking for an advisory opinion, was unconstitutional. And this is a precedent we've more or less stuck to for the following two hundred years and more. This idea of not giving advisory opinions is part of the basis for the standing, mootness, and ripeness doctrines, each of which is designed to make sure that when a federal court issues a ruling it is about an actual case or controversy in which one party has a claim to an actual legal injury and has demanded the remedy and the judgment has a chance of actually redressing the injury.

In 2011, Justice Antonin Scalia will deliver a closed-doors lecture to approximately 40 members of the House of Representatives. Specifically, the lecture will be on constitutional law, the first of a series of "conservative constitutional seminars," and it will be delivered to the Tea Party Caucus, co-sponsoring the event with the Congressional Constitution Caucus, a right-wing group. I feel like this ought to be an impeachable offense (not, obviously, that Speaker Boehner's House will impeach him over it, and I don't suppose Speaker Pelosi's would have either), or at least close, for the following reasons. First we have the fact that it at least resembles an advisory opinion, of the sort that the Jay Court decided was Right Out. I mean, I get that Supreme Court justices sometimes give speeches (I've heard Mr. Injustice Scalia take himself), and they talk about constitutional issues, but this feels different to me. I get the feeling that the idea is that these members of Congress want to be informed about what the Justice they respect thinks about the Constitution, specifically for the purpose of incorporating those ideas into their legislation. Then there's the fact that this is partisan politicking. He's not just speaking to Republicans, he's going to be speaking to a particular radical sub-faction of Republicans. In doing so, he is essentially making a public endorsement of Tea Party-ism. I'm pretty sure that this is Not Done. Yeah, it's often known which party which Justice favors, but they usually try pretty hard not to actually mention it in public. When Charles Evans Hughes ran for President in 1916, as a sitting Supreme Court Justice, he resigned, before he was even nominated. (He was later re-appointed to the Court as Chief Justice, several years later.) The whole point of having an unelected, life-tenured federal judiciary is that it is removed from politics. For a sitting Justice to openly politick pretty clearly contravenes that, I dunno, original intent seems like an appropriate phrase?

Now, the Wikipedia article on advisory opinions says that the custom against advisory opinions has been weakened in recent years in this country. But isn't Antonin Scalia kind of, you know, an originalist? I don't think he's supposed to be able to plead that people's standards have loosened in recent years. If it was good enough in 1791, it's supposed to be good enough for Justice Scalia, and the rest of us, too.

And the best part? You want to know what the lecture that Justice Scalia will be delivering to the Tea Party caucus will be about? Separation of powers. I kid you effin' not.