W e normally approve of the way Supreme Court Justice Antonin Scalia reasons. The smart, sometimes pugnacious justice consistently resists the temptation to legislate from the bench.
Still, we wish Scalia had declined to go duck hunting in January with a group that included Vice President Dick Cheney. The trip, coming as it did in uncomfortable proximity to the time he would be sitting in judgment on an important case involving Cheney in his official capacity as vice president, and important questions of separations of power and the extent of executive privilege, has raised accusations of potential conflict of interest and calls for Scalia to recuse himself from the case.
Scalia makes some compelling arguments as to why he need not do so. He argues that his impartiality might be at issue were the personal fortunes or freedoms of a friend riding on the case, but that Cheney is only a party to it in his official capacity. Yet Cheney’s political reputation and fortunes do to some extent seem to ride on this case, since it’s his ties to oil and energy interests that administration critics have used to discredit him and his policies.
If Scalia had demonstrated a little more humility, foresight and common sense in his vacation choices, whatever ruling that results in the case would not be tainted by this controversy.
No one underestimates Scalia’s intelligence or legal acumen. Nor would he likely have underestimated the importance of this case, which is about whether the vice president must release records from his energy task force meetings, which he is attempting to shield under a claim of executive privilege. We must conclude, therefore, that Scalia’s decision to go duck hunting with Cheney not long after the Supreme Court agreed to hear the case is simply an act of arrogance, rather than oversight.
The problem is that Scalia’s obvious indifference to the power of public perceptions will likely taint the ruling, however it comes out. And Scalia thereby supplies more ammunition to his and the administration’s enemies by engaging in actions that easily could have been, and should have been, avoided.
This is the second Supreme Court case this term in which Scalia’s actions outside the court have become an issue. He’s already had to recuse himself from the ongoing deliberations about whether use of the phrase “under God” in the Pledge of Allegiance is unconstitutional because he expressed an opinion on the matter during a speech last year. But such decisions are just too important, not only to the Constitution, but to the people, to be made by a less than complete court.
So we wish Scalia would be much more mindful of how his private actions and remarks are likely to impact public perceptions and his official deliberations.
While we appreciate the justice’s feistiness, aggressiveness and pugnaciousness on the bench, we believe that if he wants to stay on the court and take part in all its deliberations, he must show more restraint in his actions when not wearing the robes.