By Mike Dorf
Back in January, Justice Scalia took some criticism for his willingness to speak at an event on the Constitution organized by Minnesota Congresswoman Michele Bachmann. Jonathan Turley's piece in the Washington Post is an example of such criticism, just as Noah Feldman's recent NY Times Op-Ed is something of a defense. Turley says that when Scalia speaks to a largely partisan audience he undermines the perception (and perhaps the reality) of an impartial Court. (Turley calls out other justices as well.) Feldman says that justices have always been political, and so one shouldn't be surprised or worried. Here I want to suggest something a bit different from either of those views.
Much of the controversy over Justice Scalia's appearance before the Bachmann group was defused when it became known that Democrats were invited to attend and some did. Although the self-selecting group skewed to the political right, even a small bit of Democratic participation greatly eased the perception (and any reality) of partisanship.
Yet, so far as the Constitution is concerned, the bipartisan nature of Scalia's audience may have rendered his appearance more, not less problematic. That's because Article III has long been understood to forbid members of the Supreme Court from giving legal advice to the political branches. The earliest and most famous example involved a 1793 request by Thomas Jefferson, then George Washington's Secretary of State, for the justices' help in interpreting the government's treaty obligations to France. The justices wrote a letter to Jefferson politely declining, citing the separation of powers. Although the exact scope of the prohibition on advisory opinions has been much debated since 1793, its core remains: Article III judges and justices cannot moonlight as advice-givers to the political branches.
The very fact that the group to which Justice Scalia spoke included Democrats made the event more like a forbidden session of advice-giving to Congress qua Congress. Had he spoken before a completely partisan group of tea party Republicans, it would have raised questions about partisanship but would have looked less like a breach of separation of powers.
I'm not saying that Justice Scalia crossed the line, and I very much doubt that he did. One would have to know exactly what he said, of course, to be certain. But it strikes me as extraordinarily unlikely that he would have been asked a question like "Is this draft bill I'm handing you unconstitutional?" And if he were asked such a question, I can't imagine he would have given any answer other than "I can't tell you." But the prohibition on advisory opinions prohibits quite a great deal beyond talking about particular bills. Insofar as the core of the prohibition applies to "abstract" opining by the Article III judiciary, Justice Scalia's discussion of general principles of constitutional law might be considered no better than consideration of particulars.
To be clear, I wouldn't consider a general philosophical discussion of constitutional law and constitutional interpretation problematic under the prohibition on advisory opinions, but I have a fairly expansive view of what judges and justices ought to be able to do and say without violating that prohibition. Justice Scalia, by contrast, has sometimes been a proponent of a robust understanding of that prohibition--especially in cases involving legal standing. In other contexts, however, Justice Scalia has seemed less troubled than other conservative justices by the prospect of advice giving. For example, he has often criticized CJ Roberts and other colleagues for deciding too little, thus tacitly rejecting their suggestion that speaking substantially beyond the facts of a case amounts to forbidden abstract advice giving. To the extent that these positions are not perfectly consistent, I would like to see Justice Scalia and others on the Court narrowly construe the prohibition on advisory opinions, and thus expand permissible standing. Interested readers can find out why here.