Sunday, February 20, 2011;
SUPREME COURT Justices Antonin Scalia and Clarence Thomas have been in the news lately for attending events sponsored by conservative interest groups. But they are not the only members of the high court who routinely enjoy all-expenses-paid excursions funded by third parties, including some that may be considered controversial.
Take Justice Stephen G. Breyer's 2008 trip to Vienna to attend the World Justice Forum, which is sponsored by what some conservatives consider the liberal American Bar Association; Justice Breyer next traveled on the ABA's dime to attend the group's international law symposium in Japan, where critics might assume that he picked up fresh ideas about how to insert foreign judicial notions into his jurisprudence. Justice Ruth Bader Ginsburg spent several days in Montreal in 2006 courtesy of the American Sociological Association, which billed its meeting as "an intellectual platform to explore how the constructs of race, religion, gender, sexuality, class and nation create serious inequalities, conflicts and human suffering." And in 2009, just before her Supreme Court nomination and while she was a federal appeals judge, Justice Sonia Sotomayor enjoyed a week's respite in sunny San Juan, Puerto Rico, thanks to the American Civil Liberties Union. Enough said.
Were these justices, often characterized as left-of-center, unduly swayed by their hosts' allegedly liberal agendas? Not likely. Was their presence an indication of being in sync with the group's views - or were they invited in the first place because the groups believed they shared common values? Perhaps.
The same could be said of the outings by Justices Scalia and Thomas. The two drew fire from the liberal interest group Common Cause for accepting free trips from the Federalist Society to speak at dinners hosted by corporate titan and political donor Charles Koch. The group has asked the Justice Department to determine whether the justices should have recused themselves from the 2010 Citizens United case that paved the way for increased corporate and union donations. The move is far-fetched, because both justices had expressed hostility toward certain campaign finance restrictions. In other words, they did not need Charles Koch to prod them.
But all the members of the high court should take steps to avoid the kind of damage that can be inflicted if justices are simply seen as political players with ideological agendas.
Justices should ensure that all outside appearances are open to the public or the press to discourage the kind of conspiracy theories that inevitably surround closed-door events. They should consider paying their own way or, if possible, seeking court funds to underwrite travel that has a legitimate educational purpose, to eliminate concerns about being indebted to outside groups.
Appearances before groups that do not obviously or necessarily share a justice's legal views but extend an invitation would be refreshing.
Justices should not be forced to live cloistered lives devoid of meaningful exchanges with individuals and outside groups - even those with strongly held beliefs. But they should be careful not to put themselves in situations where their impartiality is cast in doubt or allow themselves to be seen as on one side. The legitimacy and independence of the high court are at stake.