A Breach of Federal Judicial Decorum?

For those who do not closely follow Seventh Circuit Court of Appeals Judge Richard Posner (link), he wrote an article (Supreme Court Year in Review) published in Slate that was critical of Supreme Court Justice Antonin Scalia:

Justice Scalia is famously outspoken. Is that a good thing for a Supreme Court justice to be? Good or bad, it seems correlated with an increasing tendency of justices to engage in celebrity-type extrajudicial activities.

Specifically, Judge Posner took issue with justice Scalia’s dissent in the Arizona immigration case (Arizona v. United States):

The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

Scalia, J., dissenting (footnote omitted). According to Posner:

These are fighting words. The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads.

While pointed, Judge Posner’s criticism isn’t baseless, nor was it ad hominem. So, where’s the breach of decorum?

In a June 29 interview on Fox News (link), Chris Wallace asked Justice Scalia:

Q: Conservative Judge Richard Posner wrote [sic] about your dissent “it gives that part of the opinion the air of a campaign speech.” Your response?

A: He’s a court of appeals judge, isn’t he?

Q: Yeah

A: Yeah, well, he doesn’t sit in judgment on my opinions as far as I’m concerned.

Q: You sit in judgment of his opinions?

A: That’s what happens.

Aside from arguments that Justice Scalia’s appearance on Fox News (promoting a book) is celebrity like, is this type of exchange between two of the most distinguished jurists of the modern era a breach of decorum? Surely, the unprecedented leak regarding Chief Justice Roberts’ vote switch in the healthcare case (National Federation of Independent Business v. Sebelius) constitutes such a breach? See also (link).



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