Abstract

Scalia's Flawed Judgment

The author comments on the refusal of U.S. Supreme Court Justice Antonin Scalia to recuse himself from a case involving his friend Dick Cheney. After weeks of critical editorials, embarrassing cartoons and late-night talk-show jokes, Supreme Court Justice Antonin Scalia issued a twenty-one-page memorandum on March 18 to explain why his January duck-hunting trip with Vice President Cheney, and his free ride to Louisiana on Cheney's plane, do not disqualify him from hearing Cheney's appeal of a case that could affect the Vice President's political future. The harm from this unpersuasive conclusion extends beyond this one case. Scalia's opinion tells thousands of federal and state judges that it can be OK to vacation with friends who have cases before them and to accept the generosity of those friends while their cases are pending. Though nothing can now undo Scalia's decision to sit in Cheney's case, it is not too soon to adopt remedies that will restore confidence to the credibility of recusal rulings. Scalia is both the advocate and the judge here because Supreme Court Justices get final say on when the recusal law applies to them. Scalia's eight colleagues on the Court do have the power to review his decision, just as they have reviewed similar decisions of lower court judges. But it is a power they do not use.