Standing tall

No Left Turns has linked to Justice Scalia’s opinion explaining why he declined to recuse himself in the case of Cheney, Vice President of the United States, et al. v. United States District Court, et al. This is the case in which the Sierra Club has filed to a motion to have Scalia not participate in an action against Dick Cheney, in his official capacity, because Scalia went duck hunting with Cheney and others in 2002. You should read the 21 page opinion for at least three reasons. First, you’re not likely to see Scalia’s side of the story anywhere else. Second, it’s a Scalia opinion. Third, you won’t want to miss Scalia’s shots at the various editorial writers upon whom the Sierra Club relies for authority, being unable to find legal or historical precedent to support its position.
For those who nonetheless decide not to read the opinion, here is a summary of the argument: (1) under established Supreme Court policy,the recusal of a Supreme Court Justice is not warrnted based on an excess of caution because the absence of a Justice creates the possibility that the Court will not be able to resolve the issues presented by the case, (2) during the hunting trip in question, a large expedition, Scalia never hunted in the same blind as Cheney or had other opportunity for private conversation, (3) although Scalia flew to Louisiana for the outing in the Vice President’s plane, he saved no money as a result because he returned on a regular flight and bought a round-trip ticket as the cheapest alternative (while the ride down was more comfortable than a commercial flight would have been, this benefit was no greater than a meal at the White House, a benefit that Supreme Court Justices occasionally accept), (4) under these circumstances, the argument for recusal essentially amounts to the fact that Cheney is a friend of Scalia, (5) such friendship, common enough among Justices and high government officials who get sued, has not traditionally been grounds for recusal where, as here, neither the personal fortune or personal freedom of the friend is not at issue, (6) the claim that Scalia’s recusal is warranted because the Vice President’s reputation and integrity are on the line is unpersuasive — Cheney is accused of nothing more than exceeding his power as Vice President, which is what government officials are routinely accused of in suits where such officials are named as defendants based on thier “official action,” (7) although there could be political consequences if Cheney is found to have improperly favored busniess interests in connection with the task force on energy, that possibility again exists to some degree in virtually all suits involving agency action, and to ask a Justice to consider such consequences is to ask them to do precisely what they should do, (8) Justices White and Jackson did not recuse themselves under circumstances similar to those here, and (9) press editorials urging recusal are an insufficient ground for such action, especially when the editorialists can’t even state the facts correctly and display no understanding of the law.


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