Earlier this year, Justice Scalia came under fire when the Sierra Club moved for his recusal from a case in which the Supreme Court was set to decide whether to order Vice President Dick Cheney to disclose who helped form the Administration's energy policy. The putative ground for Justice Scalia's disqualification was a duck hunting trip he took with the Vice President and a number of others.
Justice Scalia, in a lengthy memorandum opinion, dismissed the contention that due to the hunting expedition his "impartiality might reasonably be questioned," which would require his recusal under the statute governing disqualification of judges and justices, 28 U.S.C. 455. Noting that a Supreme Court justice should be more reluctant to recuse than lower court judges (who, on recusal, are merely replaced by a colleague), the Justice reasoned that the trip was a routine social interaction, in which he and the Vice President were never alone together and had no opportunity to discuss the pending case. He further argued that any friendship he might have with Cheney was of no consequence in a case that involves the Vice President only in his official capacity, with no implications on Cheney's personal fortunes. Moreover, the Justice wrote, the free ride on the Vice President's jet was hardly consideration enough to sway his integrity. "If it is reasonable to think that a Supreme Court Justice can be bought so cheap," he wrote, "the Nation is in deeper trouble than I had imagined."
I came across Justice Scalia's memorandum again yesterday, in the course of research for a case of my own, in which I have to brief the issue of whether our judge should disqualify himself. Reading over the Justice's arguments, I surprised myself by finding them rather persuasive. Perhaps the Justice hadn't been given a fair shake, I allowed myself to think. Maybe I was too quick to assume the worst of him.
That feeling only lasted until my research turned up the following, in Steven Lubet, Disqualification of Supreme Court Justices: The certiorari conundrum 80 Minn.L.Rev. 657 (1996):
Justice O'Connor, for example, recently donated all of her 'frequent flier miles' to charity so that she could participate in a case involving retroactive restrictions on their use. Justice Scalia, however, chose to keep his miles and disqualify himself from the case, explaining that his children use the mileage awards to visit him.
It seems the price of an airline ticket is enough that one might reasonably question the Justice's impartiality after all.
Justice Scalia's fits of apoplectic indignance that one might question his integrity over a plane ride and some buckshot with the Vice President ring hollower than ever to me now. I thought his disingenuousness reached its apex in Bush v. Gore, when he and four of his colleagues achieved the outcome they desired by reasoning contrary to the jurisprudential theories they ordinarily favor. Clearly, I underestimated the Justice's impressive ability to convince himself that his rulings are based in law, rather than politics.