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Supreme Court Justice Antonin Scalia is an opinionated guy. I know. I clerked for him four years ago. Every once in a while, however, Scalia’s love of intellectual engagement leads him to make a mistake. He made one of these mistakes recently. No, I am not referring to his now-famous Sicilian hand gesture. Nor am I referring to comments he made last month during a speech he delivered to a university in Switzerland. Scalia stated his view that enemy combatants captured by American forces had no right to a trial in civil courts. He did so even though a case presenting this question was arguably pending on the Supreme Court’s docket.” Rather, the mistake I am talking about occurred two years ago, when Scalia agreed to recuse himself from a case presenting the question of whether the Pledge of Allegiance was unconstitutional. Back then, Scalia made similar remarks to a public audience, making it clear that he thought the pledge was constitutional, even though a petition asking the court to review a lower court’s conclusion otherwise was pending on the court’s docket. Scalia’s mistake was not making the remarks, but agreeing to recuse himself. There is nothing wrong with Supreme Court justices expressing their views on issues pending on the court’s docket. Judges’ minds are not blank Everyone knows the justices have views on these issues. It is not as if they stay hidden in a cave only to emerge seven times a year to hear oral arguments. They read the newspapers like everyone else. It should come as no surprise that they form views on issues like everyone else, too. Given that we know the justices have views on many of the issues that they will later confront in cases, what is the harm in letting everyone else know what their preconceived views are? There is no harm-other than to the myth that judges enter every case with a mind as blank as a slate. I thought this myth was debunked four years ago when the Supreme Court decided a case called Republican Party of Minnesota v. White. In this case, the court ruled that a canon of judicial conduct that prevented candidates seeking election for judicial office from stating their views on issues that were likely to come before them as judges was an unconstitutional abridgement of the freedom of speech. The court knew that “it is virtually impossible to find a judge who does not have preconceptions about the law.” “Proof that a Justice’s mind” was a “complete tabula rasa,” the court added, “would be evidence of lack of qualification, not lack of bias.” It is true that there are canons of judicial conduct that instruct federal judges to “avoid public comment on the merits of a pending or impending action,” and to recuse themselves whenever their “impartiality might reasonably be questioned.” These canons are, presumably, why Scalia recused himself in the pledge case two years ago. But it is clear to me that these canons are just as unconstitutional as the canon struck down in White. If judges have a right to speak their mind on issues likely to come before them, it is hard to see how they do not also have the right to speak their mind on issues that are already there. Those who support the current code of judicial conduct typically worry that judges who speak publicly on pending cases do not have (or at least do not appear to have) an open mind on the issues they speak about. But this is not true. Simply because a judge has preconceived views, does not mean the judge cannot change his or her mind. I recall many instances when Scalia entered a case with certain expectations as to how he would rule, only to change his mind once he read the legal arguments submitted by the parties. In any event, even if some judges are close minded, they are no less close minded when they keep their views privately to themselves. It is important to note that this issue is a bipartisan one. Last year, Justice Stephen G. Breyer authored an opinion for the court salvaging the sentencing guidelines federal judges use in criminal cases, even though it was widely known that he wrote those very guidelines when he worked in the Senate many years ago. Breyer obviously had some preconceptions on whether his work was constitutional. Those preconceptions should not have forced him to recuse himself-regardless of whether he confirmed them publicly while the case was pending. Scalia was right not to recuse himself from the enemy-combatant case last month. Supreme Court justices are smart people with interesting things to say. We all stand to benefit when we are permitted to hear them. Brian T. Fitzpatrick is a John M. Olin fellow at the New York University School of Law. He served as special counsel for Supreme Court nominations to Senator John Cornyn, R-Texas, from July 2005 to January of this year.

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