On March 18, 2004, United States Supreme Court Justice Antonin Scalia issued a memorandum that explained the reasons why he was denying a motion that he recuse himself. In that memorandum, Justice Scalia clarified the standards of recusal for justices of the United States Supreme Court. Cheney v. United States District Court, 541 U.S. ____(2004).
Some may view the decision as peculiar to the special situation that Members of the United States Supreme Court find themselves in, to the extent that “substitutes” cannot be appointed in the way that happens when a trial judge or members of many other appellate courts recuse themselves.
Nonetheless, the scholarly and thoughtful analysis of the minutiae of personal relationships and various degrees of friendships among Members of the Court and others who may have an interest in cases before the Court, examined how those dynamics related to the standard that would require recusal if “impartiality might reasonably be questioned.” 28 U.S.C. �� 455(a).
The memorandum noted that recusal of a justice of the United States Supreme Court has much more serious consequences than recusal of a trial judge or members of other appellate courts, for example, because recusal of one Member of the U.S. Supreme Court could result in a tie vote, thereby preventing the final resolution of important issues, and, in effect, recusal in that situation would be tantamount to a vote in favor of the appellee. Nonetheless, the analysis about what particular personal connections might reasonably raise an issue about impartiality makes this March 2004 decision an important part of jurisprudence regarding the determination of the objectivity of jurists in general.
In sum, Justice Scalia concluded that, based on the circumstances in the specific situation that is the subject of the memorandum, friendship alone of the Vice President was not a ground for his recusal where official action in the Vice President’s official capacity was at issue as opposed to his personal fortune or his personal freedom. Justice Scalia described in great detail the many examples in history of justices and presidents of the United States who enjoyed close friendships that did not require their recusal when they were called upon to review official actions of the particular administration or challenges to the actions of a particular president. Justice Scalia provided a more recent example of invitations to the White House for dinner often extended to all of the justices, and a specific invitation extended to the justices and their spouses for a December 2003 Christmas reception at the residence of the Vice President which included an opportunity for a photograph with the Vice President and Mrs. Cheney.
Justice Scalia found it notable by its absence that the party seeking recusal did not cite a single citation of a justice recusing himself or herself in an “official-action suit,” as opposed to instances where the parties involved appeared in their personal capacity. The motion for recusal did not cite a single instance in which a justice either recused himself or was asked to recuse himself based on even remotely similar circumstances as presented in the Cheney case. Rather it seems that the motion for recusal was based almost entirely on newspaper editorials, many of which did not even rely on the correct facts.
Mentioned in passing, but arguably a persuasive part of the reasoning in the memorandum, was the observation that the attorney requesting recusal in the case also happened to be a friend of Justice Scalia who had sent him a “warm note” inviting him to speak at a law school class shortly before the motion for recusal was filed. Justice Scalia noted that the attorney filing the motion sought “to impose, it seems to me, a standard regarding friendship, the appearance of friendship, and the acceptance of social favors, that is more stringent than what they themselves observe.” Justice Scalia saw nothing amiss in that friendly letter and invitation but would have thought otherwise if he had applied the standards urged in the motion.
In conclusion, the memorandum clarified that the issue presented was not whether Justice Scalia’s personal friendship with the Vice President might cause him to favor the government in a case in which the Vice President was named. Instead, Justice Scalia wrote: “None of those suspicions regarding my impartiality (erroneous suspicions, I hasten to protest), bears upon recusal here. The question, simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a government plane.” Compare generally, Beam v. Stewart, Del. Supr., No. 501, 2003 (March 31, 2004) (Delaware Supreme Court addresses whether independence of member of a corporate board of directors should be questioned due to mere personal friendship not of a bias-producing nature).
Justice Scalia concluded by reasoning that: “If I could have done so in good conscience, I would have been pleased to demonstrate my integrity, and immediately silence the criticism, by getting off the case. Since I believe there is no basis for recusal, I cannot.”
The careful reasoning and analysis in Justice Scalia’s memorandum is destined to be a standard by which personal relationships of judges are measured against their ability to impartially render decisions in cases that come before them.