"If Trump and Pence both get very sick, it’s not clear who would be president/President Pelosi? Invoking the Succession Act would lead to chaos."

That's the headline on a May 20, 2020 WaPo article by lawprof Sanford V. Levinson, which is getting tweeted about this morning as there's a lot of wild talk about Nancy Pelosi becoming the first woman President laterally — that is, breaking not the glass ceiling by opening the glass window that never had a working lock anyway.

It's good to have some sober, thoughtful, professional analysis standing by:

Should only the president become ill, then the vice president can take over, following the protocol laid out in the 25th Amendment. But if the vice president becomes incapacitated as well, then we could face a constitutional crisis. It would be triggered by the inadequacies of the Presidential Succession Act passed in 1947 (when there was no vice president, because Harry Truman had succeeded Franklin D. Roosevelt)....

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.