October 4, 2014

Justice Scalia wants you to know that he's not going to tell you what he's pretty much telling you.

What a scamp this man is!
After giving a speech against the concept of an evolving Constitution, Justice Scalia at the University of Colorado was asked by a high school student about Colorado becoming the first state to allow recreational-pot sales...
Scalia smiled and said, “I’m not going to respond to that because it would force me to have to recuse myself” if the question ever went to the high court.

But he added, “the Constitution contains something called the Supremacy Clause,” which is the provision stating that federal laws trump state laws.
The justice was also asked when we’ll find out if the high court will take up the question of whether state same-sex marriage bans are constitutional.
“I know when, but I’m not going to tell you,” he reportedly replied, getting a big laugh from the audience. “Soon! Soon!” he added.
By the way, years ago, Justice Scalia did recuse himself in a case where he'd commented on the issue in public. It was the case about whether "under God" in the Pledge of Allegiance violates the Establishment Clause:
[I]n his talk to the Knights of Columbus, Justice Scalia... mentioned prior rulings by his own Court indicating that government could not favor any religious sect or religion over non-religion. He observed that such rulings were "contrary to our whole tradition, [and] to 'in God We Trust' on the coins," and said that these rulings had created inconsistencies that lent "some plausible support" to the lower court rulings in Newdow.

[And] when Scalia saw a protest sign in the crowd, he remarked: "The sign back there which says, 'Get religion out of government,' can be imposed on the whole country. . . . I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance. That could be democratically done." Scalia thus arguably implied that the elimination of the "under God" phrase could not be accomplished by any Court — even his own....
The standard for recusal is vague — "[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned" — and there's a great deal of analysis of it at that last link by Vikram David Amar. Excerpt:
The truth is that Scalia's judicial opinions are often far more sweeping, far more dismissive, and far more harsh in their treatment of legal theories, contentions and cases — including fact-patterns not yet before the Court — than any of his extra-judicial public statements have been. And yet no one in the world thinks that simply because a Justice in a published opinion has made clear in passing, say, that he does not agree with an earlier ruling and would overrule it when given a chance, that he is "biased" against that ruling — in the sense that he cannot participate in a case that comes up in which the continued vitality of that ruling is squarely presented. Having opinions about the law is very different from being biased in a particular case.
But cases must be decided. It's the judge's duty. He doesn't have to fly about the country and the world doing speeches and question-and-answer sessions. There, he's choosing to speak, and what he says on those occasions may seem more freely spoken from his mind: I'm saying this because I've got a will to say it. Within the constraints of the opinion-writing duty, there is paradoxically greater freedom: I'm saying this because I must.

But, now, Newdow was a very special case. For one thing, the plaintiff Michael Newdow asked for the recusal and pushed that demand in the press. Another thing is, the Newdow case was to be decided in the presidential election year of 2004, and to leave the liberals to determine that "under God" couldn't be in the Pledge was to invite them to burden the Democratic candidate and help President George Bush get his reelection. (Remember how his father kicked Dukakis around over the Pledge in 1988?)

In Newdow, the liberals ended up figuring out some weird tweak on the standing doctrine and avoided saying something inopportune about the Establishment Clause and the Pledge. And that maneuver has always been enough for me — arguably, a reasonable person — to question their impartiality. But the recusal statute can't mean that. Otherwise, it would be recusals all the way down and nothing could ever be decided.

22 comments:

tim maguire said...

Interesting point that I hadn't thought about. It would be absurd to suggest a judge recuse himself from a case because of something he said in a previous decision, but if he were to say that same thing on a dais, then he could be expected to recuse.

How can that make sense?

Chance said...

So first it was Wickard, now it's Supremecy Clause...

Michael K said...

The best example of bias by a judge in a case before him is the Prop 8 case in California where the judge who ruled Prop 8 (which banned gay marriage) unconstitutional then proceeded to
"marry" his gay lover. THe Proposition passed with 60% of the vote but this just proves the "Hecklers veto" is still more powerful than democracy.

The "gay rights movement" savaged supporters of Prop 8 , seeking personal information of those who contributed and then getting them fired from jobs. This went from a waitress in a Mexican restaurant to Brenden Eich a founder of Firefox who had donated some money.

Ann Althouse said...

"How can that make sense?"

I just told you how!

traditionalguy said...

Now you see him, now you don't. Scalia is too cute.

Jupiter said...

"If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance."

While it is certainly possible for SCOTUS to order the Treasury to stop putting "In God We Trust" on the currency, it is not clear that they can do anything about the Pledge of Allegiance, which is a (n ostensibly) voluntary utterance, which people employ as the mood strikes them.

While I admire Scalia, and agree with most of his positions, I could wish he did not take such obvious pleasure in being above the law.

Michael K said...

"I could wish he did not take such obvious pleasure in being above the law."

I think he just enjoys irony.

rhhardin said...

Coleridge wrote that a conflict of interest is the pulley on which good character is hoist into public view.

I'm surprised people can't manage it these days.

rhhardin said...

The pledge doesn't scan with "under God" in it.

Other than that, you can't force people to say the pledge at all, so what's the big deal.

rhhardin said...

Add "all others pay cash" to the coins as the continuation.

n.n said...

Michael K:

Another Democrat-led "John Doe" investigation with similarly aggressive tactics which violate civil rights. At least they no longer burn people at "the stake". That's so 90s.

clint said...

Is the Supremacy Clause really the issue in pot law? I didn't know the Supremacy Clause was in any way controversial -- I'd have thought the issue was rather whether the federal ban on intrastate growth and distribution of pot can be considered to be regulation of interstate commerce.

tim maguire said...

Ann Althouse said...
"How can that make sense?"

I just told you how!


You put forth an explanation, but it sounds like post hoc rationalizing to me.

cubanbob said...

Scalia doesn't have to recuse himself. Neither does any judge on the Supreme Court.

As for the Supremacy Clause, Clint nailed it pretty well. Otherwise the States would be nothing more than administrative provinces of the Federal Government. Now if the SCOTUS were to expand the Supremacy Clause that far the one thing the limited government types have been arguing for years would probably come to pass: a Constitutional Convention expressly for the purposes of clipping the wings of the Federal Government.

chickelit said...

Althouse wrote: What a scamp this man is!

"Scamp" has some real ethnic/size connotations so I'd avoid that if I were you. "Scaliawag" would be better coinage (Scalia + wag*) as people are bound to confuse it with "scalawag" which is pejorative enough.
_______________
* See third definition here

Ann Althouse said...

@tim If there is any possible explanation, there is a way whereby it can make sense, which is all that you requested. It was a low standard you set.

Joe said...

Count me among those who think judges of all levels and all political strips should just shut the fuck up and be judges. When the desire to shout "me, me, me" gets to be too much, retire.

Titus said...

Scalia has had the same job since the 80's. sad.

tits

RecChief said...

"And that maneuver has always been enough for me — arguably, a reasonable person — to question their impartiality."


BUt a line like this from a recent decision, "The exemption sought by Hobby Lobby and Conestoga would…deny legions of women who do not hold their employers' beliefs access to contraceptive coverage", doesn't make you question if they are fit for the bench at all?

AReasonableMan said...

Titus said...
Scalia has had the same job since the 80's.


Peter Principle.


chickelit said...

Titus said...
Scalia has had the same job since the 80's. sad.

tits


Yet Ginsberg is older!

sags

Zeb Quinn said...

I'm thinking his comment about the Supremecy Clause viz Colorado's pot legalization by itself telegraphs a bias. But he'd probably say he was just stating a fact.

For generations the feds tolerated Nevada's legalized gambling and lax prostitution laws, and continues to. But if a state wants to legalize pot, watch out, Supremecy Clause.