Duck hunting season in Louisiana ended in February with quite a bang. Not because of the number of hunters and waterfowl the region attracted, but because of the media attention surrounding one hunting trip in particular — the early January expedition of Vice President Dick Cheney and U.S. Supreme Court Justice Antonin Scalia.
After news reports surfaced of Justice Scalia’s duck hunting trip and an earlier dinner engagement with Vice President Dick Cheney, flocks of media and Cheney opponents called for Justice Scalia to recuse himself from a case being considered by the Court this term, claiming that his personal relationship with the Vice President will unfairly influence his decision in the pending case. In Cheney v. USDC for District of Columbia, the High Court will decide whether Vice President Cheney, in his official capacity, may keep secret the minutes of his energy task force meetings with energy executives.
When relentless attempts to force Justice Scalia to recuse himself failed through media and political efforts — Chief Justice Rehnquist rejected a request from Senate Democratic Leaders asking for an inquiry into the Scalia recusal matter by calling such concerns "ill considered" and stating that "each Justice must decide such a question for himself" — the Sierra Club filed its own motion calling for Justice Scalia’s recusal.
Under the Supreme Court’s established principles and practice, the matter was referred to Justice Scalia for him, alone, to decide. Supreme Court Justices have wide discretion to decide for themselves whether to sit out of a case, since their decisions cannot be appealed. In general, federal recusal laws are self-enforcing on the part of the judge, although they may be asserted by a party in a motion.
In typical Justice Scalia fashion, what followed was a thorough and witty Memorandum issued last week in support of his position to deny the motion to recuse. Normally, such decisions come only with the shortest of explanations, if any at all. But in what appears to be only the second time in recent Supreme Court history (the most current heretofore being a recusal Memorandum filed in 1972 by then Associate Justice Rehnquist in Laird v. Tatum), Justice Scalia filed a lengthy written opinion detailing both legal and ethical support for his decision not to sit out the Cheney case.
In the 21-page Memorandum, worthy of a 21 gun salute, Justice Scalia shoots down any doubt about whether the Sierra Club’s recusal motion is worthy of further debate. Answering his critics bluntly, Justice Scalia announced that "[s]ince I do not believe my impartiality can reasonably be questioned, I do not think it would be proper for me to recuse."
The first part of the Memorandum reads like a travel diary, offering details into the five-year history of Justice Scalia’s duck hunting trips, including invitation lists and modes of transportation. Despite the fact that Justice Scalia and other guests enjoyed a one-way trip on Air Force Two as "a matter of convenience" and on a "space available basis," Justice Scalia makes it abundantly clear that the trip did not provide two high-ranking federal officials with the intimate setting portrayed in the media, noting that he and the Vice President did not hunt in the same blinds nor did they discuss the present case.
In part two of the Memorandum, Justice Scalia offers legal support for his decision, beginning first by addressing the issue of whether the present lawsuit involves Vice President Cheney in his official capacity. Going well beyond just citing the caption of Sierra Club’s complaint, which names "Vice President Richard Cheney, in his official capacity as Vice President of the United States and Chairman of the National Energy Policy Development Group," Justice Scalia concludes that "this is a ‘run-of-the-mill legal dispute about an administrative decision’" and scoffs at recusal, noting that "[a] rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling."
Justice Scalia then devotes a page or so to defending his position to hitch a ride on Air Force Two, soundly making the case that "social courtesies, provided at Government expense by officials whose only business before the Court is business in their official capacity, have not hitherto been thought prohibited."
He begins part three by rightfully chastising Sierra Club for an utter lack of legal authority in its motion to recuse and rejecting its proffered argument that he must sit the case out ‘because a significant portion of the press, which is deemed to be the American public, demands it."
Thanks Justice Scalia for recognizing that the liberal press does not speak for all of America. Particularly when the media doesn’t even accurately report the facts of the hunting expedition at issue.
Section four presents a law review-like summary of similar previous relationships between Executive Branch higher-ups and Supreme Court Justices that were never thought to call for or warrant recusal. This includes references to relationships between Justice White and Robert Kennedy and another between Justice Jackson and Franklin Roosevelt.
Justice Scalia closes out his Memorandum in section five by stating that his recusal would harm the Court because "[t]he 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, and in an atmosphere where the press will be eager to find footfaults."
Perhaps the most poetic quote from Justice Scalia is rendered in his parting comment: "If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined."
The only thing unclear from the Memorandum is exactly how many ducks Justice Scalia managed to bag on that infamous trip. With no opportunity to appeal Justice Scalia’s refusal to recuse, what is clear is that the Sierra Club failed to bag what some thought would be the biggest prize in its most recent political manhunt.