In response to the shriller-than-ever calls for his recusal in the Dick Cheney case, Justice Antonin Scalia has lobbed this astonishing 21-page memorandum back at the public. Apparently channeling the late Justice Harry Blackmun, Scalia’s memo is a deeply felt, pained, and virtually unprecedented plea to the American people.
And before you get lost in his sea of detail, rebuttal, and historical example, it’s worth considering what this missive really represents: This is the Supreme Court talking back to us—actually responding to two months of op-eds and cartoons and petitions. This memorandum is a shaky, echoey voice emerging from behind the wizard of Oz’s curtain.
The issue is whether Scalia should recuse himself from hearing an upcoming case about the composition of Cheney’s energy task force. Calls for Scalia’s recusal were prompted by media revelations that weeks after the high court agreed to hear the case, Scalia hitched a ride with the vice president on Air Force Two, joining him for several days at a duck-hunting camp in Louisiana. The legal test of whether a Supreme Court justice should recuse himself asks, unhelpfully, that judges step aside when their “impartiality might reasonably questioned.” And since January, editorialists and cartoonists have been engaged in a unilateral war on the justice—telling him, almost daily, that his integrity is in question; that it looks bad, very bad, when one of nine justices fraternizes with a named party to a case before him. The final straw here may have been Letterman’s Top 10 list from Tuesday night: “Top 10 Signs Your Supreme Court Justice Is on the Take.” No. 1? “Already declared Bush the winner of the November election.”
When the Sierra Club filed its rather audacious motion formally seeking Scalia’s recusal, the court quickly signaled that this was still Scalia’s decision to make and his alone. Scalia has now made the decision—one usually made quietly and without explanation—in a strange public document.
He offers loads of deathly detail on the trip itself: He’s been attending this camp for five years, and his host, Wallace Carline, is not an energy-industry executive but rather runs a company providing services and equipment to oil rigs in the Gulf of Mexico. The trip had been planned months before the court agreed to hear the case. He insists this was “not an intimate setting” and that the hunters slept in rooms of two or three people (although Cheney bunked alone). Trudging about in marshes and boats, bunk beds and communal dinners. Sounds wretched. He adds that he never hunted in the same blind as Cheney and that nothing was said between them about the case.
Scalia then makes his most important substantive argument—one made earlier this week by Justice Ruth Bader Ginsburg: There’s no one to fill in when a Supreme Court justice steps aside, and the effects of frequent recusals, and the resulting 4-4 ties in the courts and on the law, are devastating. He cites a 1993 Statement of Recusal Policy (handily “available in the Clerk of Court’s case file”) to emphasize the harms of these non-decisions: “[E]ven one unnecessary recusal impairs the functioning of the Court.”
Scalia says his personal friendship with Cheney might be an issue were Cheney’s “personal fortune or personal freedom” at stake. But in this case, involving only Cheney’s official actions, there is no cause for stepping down. We take a brief historical detour into the land of friendships between justices and presidents. (“Justice Stone tossed around a medicine ball with members of the Hoover administration.”) And, in by far the strangest section of the memorandum, there is a discussion of whether Cheney’s personal integrity and reputation are on the line in this case:
To be sure, there could be political consequences from disclosure of the fact (if it be so) that the Vice President favored business interests, and especially a sector of business with which he was formerly connected. But political consequences are not my concern.
Scalia says he expected the Sierra Club motion to be “replete with citations of legal authority” and was met with a motion citing only two Supreme Court cases and a slew of newspaper articles. (A bit unfair, perhaps, to blame the Sierra Club for the dearth of Supreme Court case law in an area that has been reserved for secret, individual Supreme Court decision.) Scalia then unloads on the media for reporting much of the story incorrectly. And in the oddest act of arguing a negative ever, Scalia ends by citing the close skiing friendship between Justice Byron White and Bobby Kennedy with cases pending (no recusal) and the Charlottesville house party shared by Justice Robert Jackson and FDR with cases pending (no recusal). He argues, forcefully, that if he gives in to the pressure of the media, reporters will turn up even more “silly” improprieties. (Here he cites the Los Angeles Times’ recent fascination with his improper hunts, speeches, and other conduct.) He warns:
While the political branches can perhaps survive the constant baseless allegations of impropriety, this Court cannot. The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor.
There is a phenomenon that most liberal law students describe as the devastating effect of reading their first Scalia dissent: You read what you thought was a compelling majority opinion in some good, liberal, results-oriented case, and then you read a blistering, flawless Scalia dissent and realize, “Oh my God, he’s right.” For some of us, law school is a protracted exercise in fighting the alluring tractor-beam pull of those Scalia dissents. (“How can something so right feel so wrong?”) But for all of Scalia’s intellectual force, rhetorical genius, and passion, this memorandum will not silence his critics. For those of us who have been arguing that if we formally question judicial integrity in every case, the court will turn into an endless festering judiciary committee hearing, Scalia’s arguments make good sense.
But while we all claim to deplore the judiciary committee atmosphere, we also all now demand transparency, ideological litmus tests, and full disclosure. We have lost faith in judicial integrity, and Scalia’s call to “trust me” may be too late. I disagree with him, by the way, in his contention that the court cannot survive this scrutiny and criticism. The court has survived it before and will cycle back, in time, to a period of public trust. And perversely, I welcome the openness and frankness evinced in this letter (citations to documents on file with the court notwithstanding). Openness will do far more, ultimately, to foster public trust than baseless secrecy. We live in a transparent age, and the court has managed to huddle in its secret Skinner box for a surprisingly long time. That time may now be at an end.