To the Editor:

Re “Politics and the Court” (editorial, Feb. 5):

Justice Antonin Scalia galloped beyond the farthest boundaries of judicial propriety in secretly meeting on Capitol Hill to discuss the Constitution with Tea Party members of Congress saddled with a co-equal duty to assess the constitutionality of legislative action. If there are better ways to destroy public confidence in judicial impartiality, they do not readily come to mind.

Like Caesar’s wife, justices must be above suspicion. The Supreme Court has sermonized that “justice requires the appearance of justice.” The Constitutional Convention of 1787 rejected a Council of Revision with Supreme Court members to advise on legislation to avoid the unseemliness of justices vetting the constitutionality of their own handiwork.

No justice has ever testified on the constitutionality of bills before Congress  even President Franklin D. Roosevelt’s ill-conceived “court-packing” proposal. Associate Justice Abe Fortas was forced to resign for, among other things, secretly advising President Lyndon B. Johnson on race, urban unrest and the Vietnam War.

Charles Evans Hughes, who later became chief justice, observed in 1907: “We are under a Constitution, but the Constitution is what the judges say it is.” Don’t be surprised if a Tea Party member soon speaks on the floor of the House urging repeal of the health care reform law’s individual mandate because Justice Scalia secretly advised that it exceeds the powers of Congress.