The following letter to the editor appeared in the New York Times Friday:

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.

Bruce Fein

Washington, Feb. 5, 2011

If this is true, Scalia's misconduct is even worse than Fein suggests. Not only has Congress considered legislation to repeal ObamaCare, but the question of that law's constitutionality is currently before multiple federal courts. Canon 3 of the Code of Conduct for United States Judges stipulates: "A judge should not make public comment on the merits of a matter pending or impending in any court." If Scalia told members of the public--including congressmen--his opinion of this litigation, it would be a gross violation of judicial ethics.

But it is false. As we noted last Monday, TalkingPointsMemo.com reported Jan. 25 that Scalia's constitutional seminar was open to all representatives, not just Tea Party ones; that among the attendees were two left-wing Democrats, Reps. Jan Schakowsky of Illinois and Jerrold Nadler of New York; and that Schakowsky and Nadler both "vouched for Scalia and the event, and dispelled the notion that anything untoward happened." Nadler noted, in TPM's words, "that Scalia steered clear of addressing timely issues, and that the members who asked questions weren't pressing him for legislative guidance."

Justice Scalia stands falsely accused of serious professional misconduct, which prompts us to ask a mischievous question: What if he were to sue for libel?

Such a case would be hard for him to win. Scalia is a public official, so under New York Times Co. v. Sullivan (1964), it would not be sufficient to show that the claim about him was false and defamatory. He would also have to prove, as Justice William Brennan put it in that case, "that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not."