True Justice, Like Beauty, Is In the Eye of the Beholder

For the second time this term, Justice Antonin Scalia has found himself in hot water with the "Justice Police" for his espoused personal beliefs and personal relationships.

The first attack came after Justice Scalia reportedly told a Religious Freedom Day crowd last January that any changes to the Pledge of Allegiance should be done "democratically," through the legislatures, not the courts, and that removing references to God from public forums would be "contrary to our whole tradition." Such comments wouldn’t have been a problem except, on October 14, 2003, the Court announced that it would review the seminal Pledge of Allegiance case, Elk Grove Unified School District v. Newdow, in which a father is challenging the very inclusion of the words "under God" in the Pledge.

When the Court took that case, Justice Scalia announced that he would take no part in deciding it. No reason was offered for his decision, but many Court aficionados surmised that the media frenzy surrounding the remarks, coupled with Newdow’s formal request that Scalia refrain from participating in the case because he has "prejudged the controversy," led to the recusal.

Fast forward a few months. The latest Scalia kerfuffle does not involve his speech; the problem now is the company he is keeping. After news reports surfaced last week of Justice Scalia’s recent duck hunting trip and an earlier dinner engagement with Vice President Dick Cheney, calls again came for Justice Scalia to recuse himself from a case being considered by the Court this term.

In Cheney v. USDC for District of Columbia, the Court will rule on whether Vice President Cheney may keep secret the minutes of his energy task force meetings with energy executives. Unapologetically, Justice Scalia responded to critics in a letter to the Los Angeles Times, saying "I do not think my impartiality could reasonably be questioned." He also said, "Social contacts with high-level executive officials (including Cabinet members) have never been thought improper for judges who may have before them cases in which those people are involved in their official capacity, as opposed to their personal capacity."

Whether Justice Scalia’s impartiality could reasonably be questioned is, in fact, the test imposed under federal statutory law. The federal recusal statute, 28 USCS §455, requires mandatory disqualification of a judge in any proceeding in which his impartiality might reasonably be questioned or where he has personal bias or prejudice concerning a party. In some cases, justices have recused themselves because a relative was involved in a case, or because of potential financial conflicts. More recent legal writings suggest that judges should be disqualified not just for actual, proven impropriety, but also for the appearance of impropriety.

In addition to federal law, judges are bound by their judicial oath to follow the law, as well as the ABA Code of Judicial Conduct. Commentary to Canon 2 of the ABA Code of Judicial Conduct indicates that a judge is subject to constant public scrutiny and must avoid all impropriety so that public confidence in the judiciary is not eroded. For example, the Code says that a judge should avoid public comment on the merits of a pending or impending action.

Least of all, we should not forget that judicial disqualification or recusal may be warranted simply by applying the Due Process Clause of the Fourteenth Amendment, which states, "… nor shall any State deprive any person of life, liberty, or property, without due process of law."

The federal recusal statute is self-enforcing on the part of the judge, although it may be asserted by a party in a motion at both the trial and appellate levels. Supreme Court Justices have wide discretion to decide for themselves whether to recuse them from a case, since their decisions cannot be appealed. Ironically, the facts and circumstances giving rise to a Supreme Court Justice’s decision to sit out a case can be likened to Justice Stewart’s famous test for obscenity — "I know it when I see it."

In the last five years, there have been nearly five hundred instances where a Justice took no part in consideration of a decision, motion or petition before the Supreme Court. A recent search of a legal research system has Justice Breyer leading the recusal list, with 181 instances in the last five years, followed by Justice O’Connor who has 157, Justice Scalia with 39, Justice Stevens with 18, Justice Souter with 16, Justice Thomas with 9, Justice Kennedy with 5, Justice Ginsburg with 2, and Justice Rehnquist with none.

These results show significant support for the fact that the Justices do, indeed, take seriously whether and when to recuse themselves from cases before the Court. Unless we insist that upon their appointment they live in a cave, disassociating themselves from all relationships, it is unrealistic to expect the Nation’s highest judicial officers not to have personal contact with their contemporaries in the other branches of government. It is likewise unfair to presuppose that such relationships foster partiality in a person entrusted with the serving on the country’s highest judicial tribunal.

The Supreme Court’s own website cites to writings in the Federalist Papers, noting that "James Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than the tumult and conflict of the political process." The decision as to whether Justice Scalia should recuse himself in the Cheney case should not be decided by public political posturing. Rather, it should be left to the reasoned judgment of the Justice himself. He has already proven his integrity at least once this term alone.

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