Justice Scalia denies Sierra Club's motion for recusal.

March 19, 2004 Supreme Court Update

Greetings Court fans!

Just when we were getting bogged down in this mid-March snowstorm, Justice Scalia comes to the rescue with a lively opinion denying Sierra Club's motion for recusal. This is clearly an issue that has bugged Scalia; I hope he feels better getting this off his chest.

As you probably know, Sierra Club asked Scalia to recuse himself from the case reviewing actions of Cheney's energy task force because Scalia and Cheney went duck hunting together in Louisiana in January. According to Sierra Club, Scalia's trip with Cheney created an appearance of impartiality that required the Justice to recuse himself from any action on that case. Justices don't usually issue opinions on recusal motions (in fact, most recusals are voluntary and not prompted by motions), but Scalia felt compelled to respond, and respond he did.

A quick recap of the hunting trip in question: Scalia (and his son and son-in-law) flew down to Louisiana as guest of the VP on the VP's government plane. They participated in a duck hunting party with the VP (and several others) for a few days, although Scalia and the VP never shared the same blind and never discussed the VP's case. The VP left after a few days, and Scalia et al flew back to Washington via commercial flight. On these facts, Scalia refused to recuse himself. First, he rejected any suggestion that he should resolve any doubts on the motion in favor of recusal noting that this policy should not apply to the Supreme Court. In the Supreme Court, the recusal of a Justice would leave only 8 Justices to decide a case and therefore raises the possibility of a tie vote. In light of this, recusal is appropriate only if a Justice's actions create a situation where that Justice's "impartiality might reasonably be questioned." And, according to Scalia, while friendship with a litigant is a ground for recusal when the friend's personal freedom or personal fortune are at issue, it is not a ground for recusal where the friend is sued as a government official for actions taken in his official capacity. A contrary rule would effectively disable the Court because many Justices (past and present) are friends with Presidents or other high government officials. (Scalia proceeds to cite several historical examples of fraternization between members of the Supreme Court and Presidents.) In this case, Cheney is named because he is VP and was head of the energy task force, not because of anything he did in his personal capacity, and so Scalia's friendship with Cheney is irrelevant. Scalia next rejects any suggestion that he received a gift of value from a litigant in the case. Scalia saved no money by flying with the VP because he had to purchase a round trip ticket to return to Washington. And the fact that the flight on the VP's plane was more convenient and comfortable than a commercial flight is insignificant. The extension of "social courtesies" to Justices by government officials with "official capacity" cases before the Court is not prohibited. As an example, Scalia notes that VP and Mrs. Cheney invited all of the Justices and their spouses to a Christmas reception, and the fact that some of the Justices attended this reception was fully proper.

With these principles established, Scalia turned his attention to Sierra Club's motion. The motion argues that Scalia should recuse himself because the press (representing the American public) demand it. This is an insufficient basis for recusal, not least because of the myriad factual and legal errors in the editorials demanding his recusal. The recusal inquiry, according to Scalia, must be made from "the perspective of a reasonable observer who is informed of all of the surrounding facts and circumstances." Although Sierra Club was unable to find any legal precedent to support its motion, Scalia identifies several examples establishing that recusal is not necessary under circumstances such as these.

In sum, according to Scalia, because his impartiality cannot reasonably be questioned, it would not be proper for him to recuse himself. Indeed if he were to recuse himself, it would give the press a veto over participation of Justices who had social contacts with named officials. This is unacceptable. And if it is reasonable to think that a Justice can be bought with a hunting trip and a ride on a government plane, "the Nation is in deeper trouble than I had imagined."

That's all for now. Look for opinions and an order list next week. Have a nice weekend, and thanks for reading!

Sandy

From the Appellate Practice Group at Wiggin and Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at
www.wiggin.com.