Yesterday, Noah Feldman published a phenomenally interesting op-ed in the NYTimes. I encourage anyone who cares anything about law, history, politics, and the places where they all meet, to check out this rather quick read. You will find it well worth your time. Personally, I also find myself in complete agreement. Some highlights:
Today, even the justices’ minimal extrajudicial activities come in for public condemnation — some of it suspiciously partisan. Does anyone seriously think Justice Thomas would become more constitutionally conservative (if that were somehow logically possible) as a result of his wife’s political activism? It is true that Justice Thomas voted to protect the anonymity of some corporate contributions in the Citizens United case. But this vote reflected his long-established principles in favor of corporate speech. The personal connection was nowhere near close enough to demand recusal, any more than a justice who values her privacy should be expected to recuse herself from a Fourth Amendment decision.
After all, Martin Ginsburg, a model of ethical rectitude until his death last year, was for many years a partner in an important corporate law firm. But surely no one believes that his career made his wife, Justice Ruth Bader Ginsburg, more positively inclined toward corporate interests on the court than she would already be as a member in good standing of America’s class of legal elites.
Justice Antonin Scalia, for his part, naturally spends time with like-minded conservatives including Representative Michele Bachmann and Charles Koch. But when the brilliant, garrulous Justice Scalia hobnobs with fellow archconservatives, he is not being influenced any more than is the brilliant, garrulous Justice Stephen Breyer when he consorts with his numerous friends and former colleagues in the liberal bastion of Cambridge, Mass.
A FEW years ago, many insisted that Justice Scalia should not sit in judgment of Vice President Dick Cheney’s claims to enjoy executive privilege, noting that the two had been on the same duck-hunting trip. Justice Scalia memorably explained that the two men had never shared the same blind. He could as easily have pointed out that before President Harry Truman nationalized the steel mills, he asked Chief Justice Fred Vinson, a poker buddy and close friend, if the court would find the action constitutional. (Vinson incorrectly said yes.)
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