Justice Scalia's Persuasive But Elitist Response to the Duck Hunting Controversy

By MICHAEL C. DORF
Wednesday, Mar. 24, 2004

Last week Justice Scalia issued a memorandum explaining why he would not recuse himself from the pending case of Cheney v. United States District Court. Despite having gone duck hunting in a group that included Vice President Cheney, Justice Scalia said, he could impartially adjudicate the issues of statutory interpretation and separation of powers that the case raises.

The heart of Justice Scalia's argument is both simple and persuasive. Nobody "who thought [Scalia] could decide this case impartially despite [his] friendship with the Vice President would reasonably believe that [he] cannot decide it impartially because [he] went hunting with that friend and accepted an invitation to fly there with him on a Government plane."

That's exactly right, and under the law, it fully justifies Justice Scalia's refusal to recuse himself. Yet Justice Scalia's memorandum is nonetheless troubling because of the uncomfortable truth it reveals--that the capital of the world's most powerful nation is run by, and possibly for, an elite establishment.

The Underlying Litigation and the Sierra Club's Recusal Motion

The Cheney case arises out of the 2001 advisory committee on energy policy that Vice President Cheney headed. According to the complaint in the suit, that committee included energy industry executives, thus requiring disclosure of documents produced by the committee pursuant to the Federal Advisory Committee Act. Vice President Cheney argues in response that, among other things, such disclosure would amount to an unconstitutional interference with the functioning of the Executive branch.

The Sierra Club is one of the parties seeking disclosure of the energy policy committee materials. It argued that Justice Scalia had created at least the appearance of impropriety by going on the duck-hunting trip with Vice President Cheney after the Court accepted review of the case. Per the Court's custom, Justice Scalia himself decided the recusal motion.

The Facts of the Hunting Trip: Do They Require Recusal?

A federal statute provides that a Justice "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

The Sierra Club argued that because numerous mainstream--and thus not unreasonable--newspaper editorials have called for Justice Scalia to recuse himself, his impartiality has reasonably been called into question.

Not so, said Justice Scalia, in refusing to recuse himself. Many of the newspaper editorials simply had the facts wrong, Justice Scalia claimed, and the relevant legal test turns on what a well-informed observer might reasonably conclude, not what an uninformed observer might think.

Contrary to some press accounts, Justice Scalia explained, he was never alone with Vice President Cheney for any substantial period; they did not discuss the case; and he did not derive any financial benefit from flying one way on the Vice President's plane (because he had to purchase a round-trip ticket anyway).

Recusal is Only Required Where a Friend's Personal Interests are at Stake

The questions about Scalia's impartiality were also unreasonable, the Justice said, because they were poorly informed with respect to the law.

Under the law, he explained, friendship is appropriately a basis for recusal where the friend's personal interest--such as his liberty or property--is at stake. But where, as in the energy policy committee case, the question concerns the official actions of a friend, no recusal is necessary.

In support of his point, Justice Scalia cited numerous historical precedents of Justices socializing with Presidents and other executive officials with business before the Court. And he pointed out that were the rule otherwise--that is, were friendship or specific social contacts arising out of a friendship sufficient to require recusal in a case involving the friend in his official capacity--the Court would be overrun with recusal motions, and would have difficulty conducting much of its most important business with a full complement of Justices.

The Stakes for Cheney and Scalia: Personal, Political, or Both?

Recognizing the distinction between official and personal capacity cases, the Sierra Club had argued that Vice President Cheney's personal reputation is on the line in the pending litigation because, should he lose, he will be branded a lawbreaker who has corruptly turned the nation's welfare over to private profiteers.

But Justice Scalia thought that this sort of political damage would not substantially differentiate Cheney from any other losing litigant in an official capacity case. "[P]olitical consequences," Scalia wrote, "are not my concern."

For the millions of Americans who still feel that Justice Scalia and the Court acted out of a concern for political consequences in Bush v. Gore, that line is no doubt hard to swallow. But Justice Scalia is right that if that's the objection--if people think that Scalia and other Justices decide cases in a way that is calculated to advance the political careers of their friends--then the duck-hunting trip was a disingenuous basis for the recusal motion.

Suppose that Justice Scalia and his friend Vice President Cheney had also been accompanied on their duck-hunting trip by Justice Scalia's friend Justice Ruth Bader Ginsburg. (If you have difficulty imagining Justice Ginsburg duck hunting, imagine the threesome at the opera instead.) Would anyone think that her impartiality would be called into question because of social interaction with the Vice President? Would the Sierra Club have sought her recusal?

Of course not. And why not? Because Justice Ginsburg is, as a matter of judicial philosophy, less prone to accept claims of executive power than Justice Scalia.

The real objection, as everyone who understands what's going on here knows, is not that Justice Scalia went duck hunting with Vice President Cheney. The objection isn't that they're friends, either. The real objection is that Justice Scalia and Vice President Cheney share an approach to executive power that the plaintiffs dislike.

I dislike that approach as well. I also think that killing animals for sport (or food, for that matter), is wrong. But I don't see how either of those substantive views I hold counts as a basis for recusing Justice Scalia.

An Elitist Undercurrent: The Disturbing Tone of Scalia's Recusal Opinion

Thus, Justice Scalia was right not to recuse himself, and he has persuasively explained the grounds for his decision. Nonetheless, there is something objectionable about the tone, if not the substance, of his memorandum.

The not-so-subtle subtext of the opinion goes something like this: "We Supreme Court Justices are part of the ruling elite and we're entitled to live like it. How dare you commoners question our integrity!"

Indeed, these sentiments are not just in the subtext. Without a hint of apology, Justice Scalia writes that "[m]any Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials." Having friends in high places is, in other words, a qualification for the job, the Justice suggests--and it would be hypocritical to pretend otherwise.

To be clear, I believe that Justice Scalia made the right call and I do not mean to single him out among his colleagues. The elitism I detect in his memorandum could have emanated from any of the Justices. Even Justice Thomas, who grew up poor, is by this point part of the Washington establishment.

The problem the Sierra Club thought it saw in Justice Scalia's hunting trip was that he was too closely connected to the Bush Administration. Ultimately, that's exactly backwards.

The real problem with the Court is not its connection to the other powerful elites that run the country. The problem is the collective disconnection of all of these elites, taken together, from the masses of ordinary citizens. And that's something to think about as you decide which Skull and Bones man to vote for in November.


Michael C. Dorf is Professor of Law at Columbia University, a non-hunting vegetarian, and arguably a member of the elite establishment this column criticizes. His new book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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