Justice Anthony Scalia: Just Because I'm Friends with Dick Cheney Doesn't Mean I Can't Rule on His Case

Roundup: Media's Take

Justice Anthony Scalia, in defense of his decision not to recuse himself from the case before the Supreme Court involving Vice President Dick Cheney (March 18, 2004):

... For five years or so, I have been going to Louisiana during the Court’s long December-January recess, to the duck-hunting camp of a friend whom I met through two hunting companions from Baton Rouge, one a dentist and the other a worker in the field of handicapped rehabilitation. The last three years, I have been accompanied on this trip by a son-in-law who lives near me. Our friend and host, Wallace Carline, has never, as far as I know, had business before this Court. He is not, as some reports have described him, an “energy industry executive” in the sense that summons up boardrooms of ExxonMobil or Con Edison. He runs his own company that provides services and equipment rental to oil rigs in the Gulf of Mexico.

During my December 2002 visit, I learned that Mr. Carline was an admirer of Vice President Cheney. Knowing that the Vice President, with whom I am well acquainted (from our years serving together in the Ford administration), is an enthusiastic duck-hunter, I asked whether Mr. Carline would like to invite him to our next year’s hunt. The answer was yes; I conveyed the invitation (with my own warm recommendation) in the spring of 2003 and received an acceptance (subject, of course, to any superseding demands on the Vice President’s time) in the summer. The Vice President said that if he did go, I would be welcome to fly down to Louisiana with him. (Because of national security requirements, of course, he must fly in a Government plane.) That invitation was later extended— if space was available—to my son-in-law and to a son who was joining the hunt for the first time; they accepted. The trip was set long before the Court granted certiorari in the present case, and indeed before the petition for certiorari had even been filed....

My recusal is required if, by reason of the actions de-scribed above, my “impartiality might reasonably be ques-tioned.” 28 U. S. C. §455(a). Why would that result follow from my being in a sizable group of persons, in a hunting camp with the Vice President, where I never hunted with him in the same blind or had other opportunity for private conversation? The only possibility is that it would suggest I am a friend of his. But while friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has tradition-ally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer.

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. Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials—and from the earliest days down to modern times Justices have had close personal relationships with the President and other officers of the Executive. John Quincy Adams hosted dinner parties featuring such luminaries as Chief Justice Marshall, Justices Johnson, Story, and Todd, Attorney General Wirt, and Daniel Webster. [Memoirs of John Quincy Adams 322–323 (C. Adams ed. 1969) (Diary Entry of Mar. 8, 1821).] Justice Harlan and his wife often “ ‘stopped in’ ” at the White House to see the Hayes family and pass a Sunday evening in a small group, visiting and singing hymns. [M. Harlan, Some Memories of a Long Life, 1854–1911, p. 99 (2001).] Justice Stone tossed around a medicine ball with members of the Hoover administration mornings outside the White House. [Memoirs of Herbert Hoover (1952).] Justice Douglas was a regular at President Franklin Roosevelt’s poker parties; Chief Justice Vinson played poker with President Truman.
[J. Simon, Independent Journey: The Life of William O. Douglas 220–221 (1980); D. McCullough, Truman 511 (1992).]

A no-friends rule would have disqualified much of the Court in Youngstown Sheet & Tube Co. v. Sawyer, U. S. 579 (1952), the case that challenged President Truman’s seizure of the steel mills. Most of the Justices knew Truman well, and four had been appointed by him. A no-friends rule would surely have required Justice Holmes’s recusal in Northern Securities Co. v. United States, 193 U. S. 197 (1904), the case that challenged President Theodore Roosevelt’s trust-busting initiative. [See S. Novick, Honorable Justice: The Life of Oliver Wendell Holmes 264 (1989) (“Holmes and Fanny dined at the White House every week or two . . .”).]


comments powered by Disqus