The Nine [112]
It was raining when Cheney’s plane arrived, and it never stopped during the two days the vice president remained. (Scalia and his family stayed for four days.) Counterintuitively, the weather apparently was too wet even for ducks, because few of the targeted green-heads and teals were seen and even fewer killed. Carline said it was the worst duck hunting in thirty-five years.
Later that month, the Los Angeles Times, as well as the local Daily Review of Morgan City, Louisiana, disclosed the trip, and the Sierra Club asked Scalia to recuse himself from the energy task force case, which was to be argued in April. Curiously, there are no formal rules governing when Supreme Court justices must withdraw from cases. Unlike judges on the lower federal courts (which do have such rules), a Supreme Court justice cannot be replaced in a given case; ties at the Supreme Court amount to an affirmance of the lower court. Because of these unfortunate consequences, the justices are reluctant to drop out. The general rule said justices should withdraw if their “impartiality might reasonably be questioned”—whatever that meant.
The motion to recuse Scalia reflected a trend in Washington to turn disagreements over substantive issues into matters of personal ethics. In the nineties, Republicans pursued Clinton on many frivolous controversies. Later, without control of either house of Congress, Democrats had limited options for payback, but this attack on Scalia—a kind of petty harassment—was one. There was never any evidence that he and Cheney discussed the case or that Scalia, whose views on the rights of the executive branch were well established, was influenced by the joint outing. In all, the case for Scalia to recuse himself was weak. Cheney had been sued not as an individual but in his official capacity (meaning the case would continue if Cheney left office), and the Supreme Court hears cases against prominent government officials all the time. Most important, by historical standards, the relationship between Scalia and Cheney was hardly unusual; indeed, other executive branch officials and Supreme Court justices have enjoyed much closer friendships.
Breyer, among others, urged Scalia to avoid the controversy, recuse himself, and forget about the whole matter. (This was typical advice from the notoriously conflict-averse Breyer.) Scalia refused. Indeed, after stewing for weeks, he produced an unusual, and unintentionally amusing, public memorandum that was released shortly before the task force case was argued. Scalia’s twenty-one-page jeremiad included commonsense observations (“Many Justices have reached this Court precisely because they were friends of the incumbent President”), detailed historical references (several justices played poker with Roosevelt and Truman), and gratuitous attacks on “so-called investigative journalists” for their errors (the San Antonio Express-News said the duck-hunting trip lasted nine days).
The memo also included a detailed account of the trip and even Scalia’s personal expenses. (His round-trip fare, with an unused half, was still cheaper than buying a one-way ticket, so the ride with Cheney did not save the Scalia clan any money.) Scalia leavened his self-righteousness with a measure of self-pity, noting that he had “becom[e] (as the motion cruelly but accurately states) fodder for late-night comedians.” In its brief, the Sierra Club had helpfully supplied examples, like Jay Leno on The Tonight Show describing an “embarrassing moment” for Cheney when he visited the White House. “Security made him empty his pockets and out fell Justice Antonin Scalia!”
On balance, Scalia seems to have been correct to remain on the case, which ended with a tangled set of opinions that basically resolved the case in Cheney’s favor. (Scalia voted for Cheney’s side; Souter and Ginsburg dissented.) With characteristic bravado, Scalia started referring