July 12, 2008

Do you really think Justices Stevens and Ginsburg are about to create Supreme Court vacancies?

Do you imagine that they stay on the Court only because they don't want George Bush replacing them? Here's the AP:
The oldest two justices — half the court's liberal wing — top the list of those considered likely to retire during the next presidential administration. Despite Stevens' and Ginsburg's apparent vigor, change on the Supreme Court is more likely than not over the next four years.

"One would think that over the course of the next four years the actuarial tables would catch up with the oldest members, as they do for us all," said Pepperdine University law professor Douglas Kmiec.
Stevens is 88. Ginsburg is 75. Let's check those actuarial tables. I'm looking at the most recent life table from the National Center for Health Statistics. (PDF – 2004.) A white female who is now 75 has a life expectancy of 12.8 more years. So if Obama is elected and wins a second term, Ginsburg can outlast him and even the first term of the next President.

Now, Stevens is 88 and male. Surely, he can't hold on, you're thinking. But you are wrong. The life expectancy of a 90 year old white male is 4.3 years. 6.o for 85. So do the math. Looks like a good 5 years.
[Tom] Goldstein predicts only Stevens will retire during the next four years and not before he surpasses Oliver Wendell Holmes — who stepped down two months shy of his 91st birthday, in 1932 — to become the oldest sitting justice. That would happen in February 2011.
It's funny to think of a man that old engaged in what seems like the rather childish behavior of record-setting. But if Stevens is into record-breaking, would he just try to beat Holmes by one day or would he try to set the most unbeatable new mark that he could? And what about that other record? William O. Douglas served on the court the longest: 36 years and 7 months. The man who took his comfortable seat was John Paul Stevens. The date: December 18, 1975. So he needs to go to July 19, 2011 to beat that record.

Think people will get fired up about Supreme Court appointments this fall? Perhaps not.

ADDED: I was just reading articles from the NYT archive about the Stevens appointment. This is from January 12, 1976, by C. Herman Pritchett, a polisci professor:
President Ford's appointment of John Paul Stevens to the United States Supreme Court continues and underlines the striking contrast between Republican and Democratic policies on Supreme Court selections.

Republican Presidents have consistently considered the Court as a law court, members of which should have past experience on lower Federal or state courts. Democratic Presidents have seen the Court as a policy court, and have consistently appointed to it men from public life with substantial experience.
(Here's the PDF of the article, which you might have to pay for.)

Isn't it amazing to think how differently that would be written today? For one thing, someone who favored the Democrats' approach, as Pritchett does, would never concede that the Republicans see the Court as a "law court" and the Democrats see it as "policy court." You never even hear those expressions these days, and you don't even find the idea embodied in that term "policy court" presented in a positive light. Today, both sides claim their judges follow the law and accuse the other side's judges as importing policy preferences into the decisions.

Pritchett was looking at the record beginning with the constitutionally monumental year 1937. He acknowledges 3 big exceptions to the Republican pattern: Earl Warren, Lewis Powell, and William Rehnquist. He summarily discounts them: Eisenhower viewed the Warren nomination as a mistake, and Powell and Rehnquist were "spur-of-the-moment selections made by Mr. Nixon under great pressure." Of the 16 Democratic nominees, Pritchett counts only 3 that had judicial experience, and for 2 of those — Fred Vinson and Thurgood Marshall — it was "little more than an incident in a distinguished public career, and hardly figured as a factor in their selection."

Pritchett definitely thought the Democrats had it right. He cites Felix Frankfurter — who hadn't been a judge before he went on the Court — who supposedly made "a careful study of his predecessors" and "concluded that the relationship between judicial experience and success on the Court" — there's a soft variable! — "was absolutely zero."

Can you image the uproar if Barack Obama echoed Pritchett's views today?

IN THE COMMENTS: Bissage writes:
I’m just going to say this much: I strongly suspect that some of you people who think high-achieving people fight to retain their status because they live for the hope of seeing the downstream effects of their work have probably never worked for a high-achieving person.

I’m not saying that to start a ruckus.

I’m just saying.
And this makes me realize I accidentally deleted a paragraph of my original post! I had intended to say that individuals who keep their jobs into old age have demonstrated to us that they are not the retiring kind. I would assume they love their work, live in it, and even believe that it keeps them alive, sharp, and in the world. You would do better to watch for people in their early 60s to retire, because these are the people who have not yet revealed whether they have a vision of themselves as retirees. An 88-year-old Supreme Court Justice doesn't look to me like someone who's just waiting for the right moment to retire.

Jim Lindgren says:
If Obama wins, I think Souter or Ginsburg will be first.

Stevens is going strong and in great health. Why NOT set the record for serving the longest?
I agree. Let him set a fine example of strength in super-old age. Is there some 50-year-old with more to give? Why would he think so?

40 comments:

Bissage said...

The man who took his comfortable seat was John Paul Stevens.

And that was a mighty big butt print he had to fill.

vbspurs said...

Think people will get fired up about Supreme Court appointments this fall? Perhaps not.

It matters a heck of a lot to some: count me in.

Justice Ginsburg gives off an air of yes, hanging on because of ideological reasons (and not esoteric reasons like power, or because she would miss her best buddy, Justice Scalia). But that's just my impression.

Ever since Roe v. Wade, the choosing of Justices has become a delicate balancing act. We all know this. I think the more liberal ones are more aware of it than others.

As for life expectancy, though stats are good, we need to factor in a sedentary, intellectual life. Power ages them, but doesn't necessarily prevent a long life (as Queen Victoria and other monarchs throughout the ages have shown).

Above all, there's genes. let's look at family history for at least one Justice, Ruth Bader Ginsburg.

Wikipedia says that "Kiki" -- her nickname, heh -- had a mother who died in her senior high school year, of cancer. Her older sister died young. Her husband barely survived a bout of cancer in Law School. No word on how long her father lived.

I'd say, she's lucky to have made it this far.

I'd be surprised if she doesn't step down, whomever is the President after 2009.

Cheers,
Victoria

The Florida Masochist said...

Anyone besides me notice that Law Professor C. Herman Pritchett said Justice Stevens was appointed by President Ford and President Nixon in the same article?

I was only 15 in 1976 and didn't have a blog. The Professor may have won a Knucklehead award back then.

Bill

Kansas City said...

Fascinating find by Ann. Pritchard's assessment of "policy judges" is exactly true today. You only have to look at how Obama describes his ideal supreme court justice (sympathy, big heart,etc) to see that. It also plays out repeatedly in decisions, such as on the death penalty.

The justices hanging on to their power is a disgrace. O'Connor deserves praise for stepping down. Regretfully, the politicalization of the supreme court has created a need for mandatory retirement, although that would not be much of a fix because the replacements would be idealogues as well.

It is awful that in most cases you know how the four liberals and four conservatives will vote. While Kennedy and O'Connor can be legitimately criticized for some of their reasoning and holdings, we should have nine justices just like them so that each case gets a fair hearing. Nine non-idealogical judges would get things right most of the time. I would like to think that our judges should be fair and open minded enough so that every litigant has a chance to win. Cases that get to the Supreme Court generally should be close and important cases. Kennedy is in a terrible spot today (at least for the country - he might enjoy the power)because the idealogues effectively give him power to decide the law on most important issues.

The mess will be very hard to fix, although it is conceivable that McCain would nominate (or, more likley, be forced to nominate) an open minded person. Obama, of course, would nominate a left wing idealogue who would just continue the current sorry situation.

The Florida Masochist said...

Give myself my own award. He said Powell and Rehnquist. I got to read more carefully. DUh!

Randy said...

In answer to your question, I don't believe that they think they are, but one or both might. I don't lose any sleep at night worrying about the possibility of a Supreme Court vacancy, either. Your quote from 1976 was illuminating.

Yachira said...

"Do you imagine that they stay on the Court only because they don't want George Bush replacing them?"

Almost certainly. Indeed, if some supreme being knew the answer to your question, and I had to guess correctly or die, I'd bet that they are staying on the Court so avoid Bush and retire under Obama

Bissage said...

I’m just going to say this much: I strongly suspect that some of you people who think high-achieving people fight to retain their status because they live for the hope of seeing the downstream effects of their work have probably never worked for a high-achieving person.

I’m not saying that to start a ruckus.

I’m just saying.

Cedarford said...

Bissage said...
The man who took his comfortable seat was John Paul Stevens.
And that was a mighty big butt print he had to fill.


Few cases illustrate the folly of lifetime judicial appointments and lack of any formal means of removing an incapacitated judge from vital duty to the public better than the sad last years of William O Douglas, Thurgood Marshall, and Reinquists last year.

Douglas was incapacitated by strokes and joined by Marshall in early dementia. "The Bethren" described the delicate struggles to get both of them out before the public noticed they were Strom Thurmonds strapped to a chair with a staff of puppeteers moving their strings and speaking and deciding on their behalf.
Reinquist was so sick with cancer he would have been expected to excuse himself from just about any other critical government position in America, and most private ones - his staying was not crucial to "independence of judges" but the folly of one man's ego. Staying on and missing arguments and too sick to read motions and direct clerks work, under heavy drugs, but "courageously" voting..

Kansas City agrees that incapacitated or diminished capacity judges hanging on to power as their personal whim is a disgrace, and in applauding the semi-senile O'Connor for knowing better than Douglas, Marshall, Reinquists - but errs in this statement:

While Kennedy and O'Connor can be legitimately criticized for some of their reasoning and holdings, we should have nine justices just like them so that each case gets a fair hearing.

All too often, the diffident and the feckless are perceived as having a higher, nobler intellect than the people with a distinct legal philosophy and frame of reasoning they stick to.
While Ruth Ginsberg is a Jewish Trnsnationalist, and is at her core anti-American and pro Euro-Law- I respect her intellectual rigor and honesty and reasoning as she votes the "wrong way". In no way and in no way does she vote based on how she feels day-to-day like O'Connor at her worst, and reveal her thinking to be as vapid as O'Connors stupid tests and legislative mandates. "oh, I feel affirmative action is wrong, but we need it for the next 25 years, because I as deciding vote think it would be a nice thing".

If possible, Kennedy is even worse, because he worries that the summer-long feting of him in his three-month long annual Euro-retreat where he is given the finest hospitality would be jeopardized if they think he voted in unenlightened manner. His sin is dishonesty - he is not ideologically set that way like the two Jewish transnationalists are, or liberal Souter. He votes, I suspect, for measures that enhance his reputation more in Paris than Peoria.

The temporary lauding of O'Connor as the "wisest judge" who "transcends" partisan ideology like Obama transcends "mere politics" will be buried historically by Scalia's eviscerating dissents showing her as a hack Arizona legislator who failed to show any reasoning to back her predetermined judgement on cases she felt needed to be decided a certain way just like she did as an elected low-level politician.

Stevens may be diminished by his enemy rights votes and his poor reasoning as he "stuck it to Bush" in his dotage, and Kennedy's final rep may be as the Europhile who said that in many ways, the Constitution of Zimbabwe has better features than the US one, and should factor into his votes...

Kansas City said...

Cedarford,

As I said, Kennedy and O'Connor certainly can be criticized, but if you had 9 non-idealogues like them, most cases would come out right and you would not have the current putrid situation of Kennedy deciding virtually every important issue. He would just be another vote in an open minded 9.

Bruce Hayden said...

I was talking to my father this last weekend, and he asked what I thought about replacements on the Supreme Court with the new (presumably Obama) administration. He was surprised that I suggested just this, that both Justices Stevens and Ginsburg were hanging on so that they could be replaced by more liberal Justices than the present President Bush has placed on that Court.

Justice Stevens is old, and Justice Ginsburg is not in the best of health. There have been rumors for a year or so of either or both of them retiring.

Seneca the Younger said...

but if you had 9 non-idealogues like them, most cases would come out right ...

Define "right".

Anyway, just to introduce a bit of math geekery here, Ann, you're misusing the "life expectancy". A life expectancy of 6.5 years, as with Justice Stevens, means that of all the men of Justice Steven's age, half of them will be dead within 6.5 years. So it's not better than about 50/50 that Stevens would survive the Obama presidency.

Similarly, the fact that Justice Ginsberg was treated for colorectal cancer, and was treated relatively aggressively, suggests her life expectancy would be rather less than the general 12 years, even if she hasn't had a recurrance.

I think you're whistling past the graveyard here.

Jim Lindgren said...

If Obama wins, I think Souter or Ginsburg will be first.

Stevens is going strong and in great health. Why NOT set the record for serving the longest?

P. Rich said...

"Democratic Presidents have seen the Court as a policy court,"

Yes. And nothing has changed in the intervening 30+ years.

Isn't it amazing to think how differently that would be written today?

Only because the left now consistently lies about its intent regarding use of the courts to invent law and rewrite the Constitution.

Today, both sides claim their judges follow the law and accuse the other side's judges as importing policy preferences into the decisions.

Lefty smokescreen. More lies and evasion. Conservatives finally realized the sleazy rules of the leftist game (heads we win, tails you lose) and have had to consider self-defense measures.

At the end of the day, the left would happily abandon the Constitution as an impediment to their worldview and adopt something much closer to the Politburo form of absolute elitist control. Meanwhile, the Supreme Court is seen by the left as a temporary, albeit inefficient, surrogate in its sideways march to a Marxist-Leninist state.

Simon said...

P. Rich said...
"[N]othing has changed in the intervening 30+ years."

The terms of the debate have changed - I thought that was Ann's point. To say in this day and age that you want an instrumentalist "policy" court is not a credible position for someone seeking political office, and has veyr little appeal outside of CLS circles. Whatever one's private thoughts may be, a politician who wants to appear to be within the mainstream must demand judges who see that their "job is not to make the law the best it can be, but to enforce the law actually enacted." Bloch v. Frischholz (7th Cir. July 10, 2008) (slip op. at 6). This consensus -- America at large has profoundly and decisively rejected so-called "legal realism" and its descendents -- changes the parameters of the debate.

Wurly said...
This comment has been removed by the author.
Father Martin Fox said...

Cedarford:

I may be missing something (very likely), but...I'm not clear why Breyer and Ginsberg being Jewish was important to your post.

Jay said...

I knew a doctor who cared for Justice Douglas during his last days on the court. His stroke had robbed him of his short-term memory and friends were trying to persuade him to leave the court. They asked him how he could sensibly decide cases when he could not recall the arguments that had been made. He is reported to have replied, "I'll wait to see which way the Chief votes, and vote the other way." The Chief Justice then was Warren Burger.

Zeb Quinn said...

At the end of the day, the left would happily abandon the Constitution as an impediment to their worldview and adopt something much closer to the Politburo form of absolute elitist control.

As an undergrad 35 years ago I had a poly sci professor of an extreme leftist tilt who lectured exactly that. He argument was that we are much smarter and better educated today (this was in 1973) than those 18th century white male hayseed rubes could ever have hoped to be, so we should just chuck the whole thing, start over, and do it right this time, starting with making sure that there is plenty of room at the table for blacks, Native Americans, and women.

Simon said...

Jay, that story is straight out of The Brethren. 2005 ed. at 474.

Randy said...

Father Martin Fox: New around here, aren't you? ;-) After reading 2 or 3 more of his comments, your question will answer itself.

Cedarford said...

Father Martin Fox - I may be missing something (very likely), but...I'm not clear why Breyer and Ginsberg being Jewish was important to your post.

As a "stateless" people. Jews invented the the notion of borderless revolution (Trotsky), of any domestic law and constitution being trumped by "higher" international law and possible greater wisdom of other constitutions that can substitute for "limits" in a particular nations constitution that constrain "doing the right thing". And finally, that people must be free to move as they pleased between nations for maximum wealth gains without archaic notions of adherence to soil or loyalty to any culture or government. (The Soviets called the last "Cosmopolitanism", which was a crime)

Breyer and Ginsberg are solidly in that Jewish intellectual tradition.

Both have cited other nations laws, constitutions, plus "Higher UN, International Conventions" as a basis to "re-interpret" the US Constitution. Kennedy, the Europhile has occasionally joined them in citing "higher International Law, the "brilliant Zimbabwe Constitution" as partial basis in majority decisions. As did O'Connor in her semi-senile final two years as Ginsberg convinced her now and then that social trends in Europe, EU Law, should not be ignored in many cases.

Of course the Transnationalist camp has taken some serious heat for it, especially by Scalia and Roberts who say extra-national law and facts in foreign lands, aside from Eglish common law pre-Constitution, have no place in Justice's deliberations and introduction violates their oath.

Simon said...

"Jews invented the the notion of borderless revolution (Trotsky)...."

No - communists (more particularly Leninists) invented that concept. Your problem, Cedarford, is that you never have been able to distinguish between acts taken by Jews qua Jews and acts taken by people who happen to be Jewish. It is true that two of the most high-profile exponents of the transnationalist project are Justices Ginsburg and Breyer, who are ethnically Jewish. But the highest profile exponent of all is Justice Kennedy who is (at least nominally) Catholic, and there are plenty of people - Dean Koh, for example - who are fully on board regardless of ethnicity or religious affiliation.

And despite the best efforts of some -- efforts I fancy you approve of -- the Jews are not a stateless people any more, and have not been for half a century.

Zeb Quinn said...

I'm trying to think of a supreme court justice who was itching to retire but just couldn't because the wrong president held the White House, so s/he waited and waited until the right president held it, and then retired. I know this is speculated about happening with each presidential election, but, sorry, I just can't remember any actual instances of it.

Bill said...

Jim Lindgren: If Obama wins, I think Souter or Ginsburg will be first.

What about if McCain wins? The same two?

PrestoPundit said...

This guy has obviously never worked for an academic.

"I strongly suspect that some of you people who think high-achieving people fight to retain their status because they live for the hope of seeing the downstream effects of their work have probably never worked for a high-achieving person."

PrestoPundit said...

This guy has obviously never worked for an academic.

"I strongly suspect that some of you people who think high-achieving people fight to retain their status because they live for the hope of seeing the downstream effects of their work have probably never worked for a high-achieving person."

RJ said...

Barack Obama:

"What's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves."

"I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through."

"Both a [conservative Justice Antonin] Scalia and a Ginsburg will arrive at the same place most of the time. What matters at the Supreme Court is those 5% of cases that are truly difficult. In those cases, adherence to precedent and rules of construction will only get you through 25 miles of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy.

"In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."

So... do you really want this guy picking the next few Supreme Court justices? I sure don't. Let's not pretend that he won't get the opportunity if elected, either. He almost certainly will.

stevewhitemd1 said...

With regard to Cedarford's comments on the infirmity of justices, we have a model solution.

Per the 25th Amendment, we have rules for replacing (on a temporary basis at least) a president who is unable to perform the duties of the office. That is of course important, as we wouldn't want a 'President Rehnquist' afflicted with terminal cancer trying to hang on in the job.

Likewise, a new constitutional amendment could set a simple rule for judging the fitness of a Supreme Court justice. As with the 25th, where the president him/herself can invoke the rule, or the vice-president and others can invoke the rule, the new amendment would have a procedure for a sitting justice to note her/his incapacity, or allow (perhaps) the other justices to invoke the rule, subject to congressional oversight.

[Why not apply this to Congress, you ask -- recent examples, including Senators Kennedy, Johnson, Thurmond and Byrd demonstrate that the loss of a single senator or representative does not incapacitate the Congress, at least so that you would notice]

ScottW said...

Cedarford:

Thurgood Marshall left the court over a decade after "The Brethren" was published. I don't recall it spending any time on an incapacity of his, but, then again, I read it when it can out in 1979. Perhaps you were thinking of John Marshall Harlan?

docweasel said...

Actuarial tables can't predict for individuals. I'd take the bet that at least 2 and maybe as many as 4 vacancies will arise during the next administration. I think this is a very important election because of that. And that is why I am disgusted with so-called "conservatives" who are still talking about with-holding support for McCain in a fit of pique because they don't feel he's sufficiently fellated them. If they truly cared about conservative issues and goals, they would do anything and everything to keep a Democrat from filling those Supreme Court seats.

I think its about time the GOP cut ties with the far right anti-immigrationists, especially the nativist Malkinite loonies, anyway. They are the main whingers (see this week's McCain ad reaction) and exemplify the disgusting excess and bigotry for which the leftwingnuts rightly chide the right. They aren't really conservatives and care nothing about the party or conservative principles, anyway.

Kansas City said...

RJ's quotes from Obama are devastating and, from an objective perspective, should disqualify the guy from being president.

"That last mile [of deciding a difficult case] can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy."

"In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."

I guess in politics there is no effective way to call guy on stuff, but it does violate the basic tenant that everyone is equal before the court.

Kansas City said...

RJ's quotes from Obama are devastating and, from an objective perspective, should disqualify the guy from being president.

"That last mile [of deciding a difficult case] can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy."

"In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."

I guess in politics there is no effective way to call guy on stuff, but it does violate the basic tenant that everyone is equal before the court.

Simon said...

Zeb Quinn said...
"I'm trying to think of a supreme court justice who was itching to retire but just couldn't because the wrong president held the White House, so s/he waited and waited until the right president held it, and then retired. I know this is speculated about happening with each presidential election, but, sorry, I just can't remember any actual instances of it."

Harry Blackmun. You can't read his Casey opinion and not conclude that he was begging America to elect a Democrat that fall so that he could retire without leading to Roe's demise.

Kansas City said...
"I guess in politics there is no effective way to call guy on stuff, but it does violate the basic tenant that everyone is equal before the court."

It also violates common sense, if we assume Obama actually understands the role of the Supreme Court in the federal judiciary. The court's ruling doesn't just affect the litigants before it, it affects 300 million other people, to whose cases the rule fashioned also applies. It would be a foolish Justice indeed who decided a case on the basis of what does justice to these sympathetic litigants before her in this case, without understanding that the rule herein announced will be used a million times to produce injustice by far less sympathetic litigants. Cf. Moore v. Sims, 442 U.S. 415 (1979).

clint said...

You're making a math error.

The odds of any one of them retiring in a given 4-year stretch is small (or at least less than 50% for Stevens) -- but the chance that at least one of them will retire is considerably higher.

It's quite likely that the next president will get to appoint at least one Justice.

I'd put money on it. Does Intrade cover such things?

Patm said...

I think it's pretty much UNDERSTOOD that those two are just waiting for a Democrat in the White House so they can retire.

Kansas City said...

Blackmun is a good example of how the power of the supreme court changes people. He wrote a ridiculous opinon in Roe that was largely designed to protect doctors. He intended to issue a press release on the day the opinion was handed down to state that it did not approve abortion on demand. Thus, he did not even understand what he had written. [Neither did Burger, who concurred with it.] Then, over time, he became attached to the "greatness" and importance of his opinion. There is an argument for abortion on demand, but it is one for the legislatures, not one a few old man on the Supreme Court to make up as a constitutional right. There are some internal memos between the justices ridiculously debating whether the cut off for unfettered abortion should be 3 or 6 months, without any regard for any constitutional or even legal principle.

Nathan said...

Clint is right. The odds of at lest one justice retiring during the next four years are quite high.

Also, I think I read somewhere that Justice Stevens' father was active in his profession into his nineties and that longevity runs in his family. I certainly wish Stevens well. He's an American hero going all the way back to WWII.

former law student said...

No one has called cf on this:

the summer-long feting of him in his three-month long annual Euro-retreat where he is given the finest hospitality

Where does this come from? Kennedy teaches a three-week course at McGeorge's Salzburg summer session. How does this become three months? Kennedy started teaching classes at McGeorge in 1965.

"In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."

I guess in politics there is no effective way to call guy on stuff, but it does violate the basic tenet that everyone is equal before the court.


Scalia violated that basic tenet when he flew to Louisiana on Cheney's private jet to go duck hunting with him, then later refused to recuse himself in a case the Sierra Club brought against Cheney. We have enough justices who are cozy with the fat cats -- having some who can sympathize with ordinary people would help bring some balance to the Court.

Simon said...

FLS said...
"Scalia violated that basic tenet when he flew to Louisiana on Cheney's private jet to go duck hunting with him, then later refused to recuse himself in a case the Sierra Club brought against Cheney."

The Sierra Club brought suit against the Vice-President, not Dick Cheney in a personal capacity. There was no reason for Scalia to recuse himself, as his memo explains. Indeed, one of the two plaintiffs refused to join Sierra Club's motion for recusal, which should have been an alarm bell.

At very least, it is hard to understand why Scalia did something wrong if Ginsburg did nothing wrong by failing to recuse in a case where the plaintiff was an organization her husband belonged to. See Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006). Of course, bleating about either case is unavailing - Cheney was 7-2 and FAIR was unanimous. So the recusal would have been a moot point anyway, which one might have thought would have terminated the "controversy" but for its apparent partisan utility.

It seems to me that Scalia did make a serious mistake about recusal in the last five years: it was allowing himself to be bullied out of the Elk Grove case, not refusing to bow out of Cheney.