U.S. Supreme Court Justice Antonin Scalia, described just last week by a Washington law professor as "the first real celebrity justice" for his controversial public pronouncements, will come to Capitol Hill on Monday to lecture about constitutional law to some earnest members of the House of Representatives. He was invited to do so by Rep. Michelle Bachmann, a Minnesota Republican and tea party activist in Congress, as part of her effort to educate lawmakers about the nation's founding legal documents.
Although Justice Scalia has been criticized in some quarters for accepting the invitation, it is not unreasonable of him to consider the opportunity to speak face-to-face with his interbranch partners as a rare and welcome one. And although many observers see the effort as a partisan ploy between and among conservative ideologues, there are plenty of nonpartisan things Professor Scalia can lecture about. For example:
1. Write Less Ambiguous Laws. Scalia should remind Capitol Hill that a great deal of the reason the Supreme Court is often called upon to resolve disputes, constitutional or not, is because lawmakers keep enacting legislation the language of which is ambiguous, incomplete, and often contradictory. "We want you to know," Professor Scalia should say to the impressionable lawmakers, "that we know when you are legislating clearly and we know when you are just passing the buck along to us, and usually it's the latter."
2. The Constitution Itself. Professor Scalia should confirm to his students that the Constitution itself is just such an "ambiguous, incomplete and often contradictory" legal document and that, 99 percent of the time, federal judges interpret it in a valid and reasonable manner. "The steel of the Constitution was forged from the same political fire that today generates compromise and conflict in lawmaking," Professor Scalia should teach. "We as judges are simply doing the best we can with an imperfect document."
3. Fill the Empty Article III Benches. OK, this is one for the Senate, and not the House, but it still applies. The surest way to express the most reverence to the Constitution is to confirm the number of judges necessary to fill the scores of empty benches that languish in federal courts across the country. Professor Scalia should make this point: "If the Constitution is to apply dutifully to everyone's life, we can no longer coutenance delays in bringing justice to litigants by failing to adequately staff our courts."
4. Forget About Constitutional Authority Statements. Professor Scalia should encourage all members of Congress to increase their knowledge and understanding of the Constitution. But he should also take the opportunity to remind his students that no matter what is actually in the constitutional "statements" they issue in conjunction with pending legislation (a new GOP House rule), it will be the Supreme Court, and not the Congress, which will have the final say on whether a federal law is or is not valid. "If you are going to try an end-run around the court's foundational decision, Marbury v. Madison," Professor Scalia should say Monday, "then don't expect support even from me."
5. Judicial Actvism Is a Myth. Professor Scalia should instruct his pupils that the charge of "judicial activism," whether from the right or from the left, is silly and worthy of far less attention than it receives from politicians, including some of the students sitting in front of him. "Every time a judge decides a constitutional case," Professor Scalia should tell Bachmann and Company, "it's an act, whether it is in your favor or not. Judicial activism means so much that it really means nothing at all."
6. Judicial Ethics and the Constitution. Professor Scalia shouldn't (and ethically can't) tell his students what he thinks of the constitutionality of the Patent Protection and Affordable Care Act of 2010 -- besides, they probably already know by now from this dissent earlier this month. But he can take the opportunity to impress upon the class that it's not the place of politicians to lobby sitting judges about the results of a particular case. "Don't tread on us," Professor Scalia should say to lawmakers, "we are a co-equal branch of government."
7. Civility in Government. Professor Scalia, a dear friend of his ideological counterpart Justice Ruth Bader Ginsburg, should impress upon his audience of professional political scientists the usefulness of civility and respect in government work. There is no doubt that the court's five conservative justices don't often see eye-to-eye with its four liberal justices. And there are likely tensions from time to time in the court and its famous conference room, where cases are discussed. "But we get along," Professor Scalia should say, "and we go to lunch, and we talk, and we don't need to issue press releases when we decide to sit next to one another."