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The law, lawyers, and the court.
Feb. 3 2004 6:52 PM

Sitting Ducks

Ruffled feathers over the Supreme Court's recusal rules.

Justice Antonin Scalia
Scalia: Recuses, recuses!

Calls for something to be done about the Supreme Court's gauzy conflict-of-interest policy grew shriller last week, as congressional Democrats pressed Chief Justice William H. Rehnquist for clarification (and codification) of rules about when a Supreme Court justice has been too compromised to hear a case fairly. The trouble began last month when reports surfaced that, while a case in which Vice President Dick Cheney is the named party was pending in the Supreme Court, Cheney went duck hunting in Louisiana with Justice Antonin Scalia. It's bad enough that the several-day trip was sponsored by an energy company and that the case questions whether energy companies played too significant a role in developing Bush's energy policy. Matters worsened significantly with Scalia's flip statement to the Los Angeles Times that, "I do not think my impartiality could reasonably be questioned" and that the only thing really wrong with the trip was that the hunting was "lousy."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

There was a lot more wrong with the trip than that. But whether Congress has the right to set definitive conflict-of-interest rules for Supreme Court justices is another matter entirely.

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The Cheney case involves a request by two organizations—the watchdog group Judicial Watch and an environmental lobby, the Sierra Club—for details about the participants in Cheney's energy policy task force. The groups contend that the task force included energy company executives and lobbyists, including Enron's Ken Lay. The resulting energy policy was arguably kinder to the oil companies than to the trees, birds, and ducks—which makes no sense if you're Cheney, since you need to keep the ducks alive, if only to hunt and kill them later.

Cheney is defending his secrecy with claims of executive privilege, arguing that if the president is forced to name his close advisers, there can be no candid discussions in the White House. The argument has merit, if you can ignore the smell of steaming hot traded favors in this particular case. Cheney lost in the lower court and in the federal appeals court, and the Supreme Court will likely hear the case in April.

Whether or not a justice is too compromised to hear a case is decided, at the Supreme Court level, by the justices themselves, without written justification. The main statute that guides them, Title 28, Section 455 of the U.S. Code, ambiguously provides that judges must recuse (or excuse) themselves in any case in which their "impartiality might reasonably be questioned." The statute does not purport to comprehensively set out every factor that may compromise a judge's objectivity. It does offer some, including having family members with a stake in the case or having a financial stake in the outcome.

What's important to understand is that whether one's impartiality might be questioned is not necessarily a subjective test—which is why Scalia's claim to the Los Angeles Times that he can be impartial is immaterial. The real issue is public confidence and public perception. And it's hard to envisage any citizen who'd feel comfortable walking into a trial and seeing her judge and the opposing party still giggling together in their camouflage hats.

The dispute has led, predictably, to Sens. Joe Lieberman of Connecticut and Patrick Leahy of Vermont's letter asking Chief Justice William H. Rehnquist what procedures exist for Supreme Court justices to determine whether they have violated Section 455 or any other relevant ethical rule and what steps the court might take to bounce a justice who won't step aside voluntarily. Rehnquist fired back his own nasty-gram insisting that any suggestion that Scalia should recuse himself "in a pending case, is ill considered." The quacking got louder as Reps. Henry Waxman, D-Calif., and John Conyers, D- Mich., sent a similar letter asking Rehnquist to consider setting up some formal review system for challenging a justice's recusal decisions.

Greater pressure in this direction is coming from litigants as well. Earlier this term, one of the parties to the notorious Pledge of Allegiance case, Michael Newdow, had the temerity to suggest that Scalia recuse himself, based on less-than-temperate comments made by Scalia last year. Newdow claimed Scalia appeared to have prejudged the case before it arrived at the court, and Scalia surprised everyone by stepping down. Newdow's actions, seen as audacious at the time, now look like smart tactics. In future, emboldened advocates are increasingly likely to challenge the notion that only the justices may decide when they are compromised, by filing requests that justices step down, pointing out where they are conflicted, and attempting to publicly shame them into stepping aside.

Advocates have every right to make such requests of the court. The problem with the congressional demands for enforceable rules, and with the request that the Supreme Court as a whole be given the power to override any individual justice's decision, is that they will do more to undermine public confidence in the judiciary than any apparent conflict of interest in a single case. The broad outlines of Section 455 are just that, outlines. One may well wonder whether a justice is necessarily more compromised by a financial stake in a case than by a social or emotional stake. One may well wonder if comments made before a case is heard reveal any more prejudice than an opinion written after. We have no litmus test for which sorts of cases can be decided without caving in to personal prejudice, which is why Section 455 is so broad and ultimately unenforceable; because citizens cannot get into the business of conducting a voir dire for every Supreme Court justice in every possible case without forever shattering the perception that judges are able to be fair and unbiased. It risks reducing every single Supreme Court case to an endless, grotesque judiciary committee hearing.

Justices often allow themselves to participate in cases where they have a profound personal stake: They decide abortion and capital punishment cases even when their church may tell them it's a sin to allow either. They decide criminal law cases without disclosing whether they have ever themselves been victims of crimes. Women and minority justices decide affirmative action cases. We don't demand that justices routinely prove themselves objective in advance of each of these cases, both because deep down we know that they are not always unbiased and because—for the system to work—we must accept that they can mostly put these biases aside.

Which leads to Justice Rehnquist's important point, made in his response to the meddling senators and lost in the partisan fury over his uppity defense of Scalia: "There is no formal procedure for court review of the decision of a justice in an individual case," he wrote, "because it has long been settled that each justice must decide such a question for himself." This reads like a cop-out, but it reflects a profound truth about the proper limits on the court's powers. The justices are not gods. They do not police one another about matters of conscience for the same reason we should not attempt to police them: No one can know what's in anyone's heart, and in attempting to guess we dredge up only our own fears and biases.

Don't get me wrong. Justice Scalia should step aside in Duckgate, regardless of what's in his heart, because it's a terrible mistake—especially in a landmark case about cronyism and special influence—to allow the appearance of cronyism and special influence to taint what must be a completely fair decision. But it should remain Scalia's decision whether to do so or not. If he cannot be trusted to make it, he cannot be trusted to decide anything.