Duck-Blind Justice: Justice Scalia's Memorandum in the Cheney Case

Georgetown Journal of Legal Ethics, The, Fall 2004 by Freedman, Monroe H

When the motion was made to recuse Scalia, "8 of the 10 newspapers with the largest circulation in the United States . . . and 20 of the 30 largest have called on Justice Scalia to step aside."43 Moreover, "not a single newspaper has argued against recusai."44 Unless we are to believe that all these editorialists are unreasonable people, the conclusion is inescapable that a reasonable person might question Scalia's impartiality in the case.

Finally, Scalia misstates the law. Stating "[tjhe question, simply put," he asks rhetorically whether one "would reasonably believe that I cannot decide [the case] impartially because I went hunting with [a] friend and accepted an invitation to fly there with him on a Government plane."45 Of course, the question is not what a reasonable person believes about the Justice's impartiality, but whether a reasonable person might question his impartiality. And the point is not that Scalia cannot decide the case impartially, but again, that a reasonable person might question whether he can do so.

Scalia then links his misstatement of the law to what he claims to be the inconsequential value of the flight on Air Force Two for himself and two family members. The issue then becomes whether he can be "bought so cheap."46 He even makes the disingenuous point that "[o]ur flight cost the Government nothing," because the Vice President was going on the duck-hunting trip anyway, and the space was "available."47

"I daresay," Scalia adds, "that, at a hypothetical charity auction, much more would be bid for dinner for two at the White House than for a one-way flight to Louisiana [for three] on the Vice President's jet [with the Vice President]."48 (And how much, one might wonder, would be bid for a commercial flight for one to Croatia?) But, of course, this vacuous speculation about auctions hardly establishes that Scalia received nothing of value from Cheney while Cheney's case was pending. Nor does it respond in any way to the undeniable opportunities for ex parte discussion of the pending case, which a reasonable person might suspect took place during flights, rides, walks, dinners, and casual conversations.

In short, Scalia's opinion denying the recusai motion engages in fallacious arguments and misstates and misapplies the Federal Disqualification Statute. A Justice of the Supreme Court of the United States owes the litigants, and the public, a greater respect for the law of the United States.

1. Cheney v. United States Dist. Court for the Dist. of Columbia, 124 S. Ct. 1391 (2004) (Scalia, J., mem.).

2. see Judicial Watch, Inc. v. Nat'1 Energy Policy Dev. Group, 219 F. Supp. 2d 20, 55 (D.D.C. 2002) (ordering that the names be produced in discovery), ciff'd. In re Cheney, 334 F.3d 1096 (D.C. Cir. 2003).

3. see Cheney, 124 S. Ct. at 1396.

4. Id. Cheney's lawyers are challenging the applicability of the Federal Advisory Committee Act, and are contending that the federal district court does not have power to compel disclosure of the members' names through discovery. Id.