Ducking Recusal: Justice Scalia's Refusal to Recuse Himself from Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004), and the Need for a Unique Recusal Standard for Supreme Court Justices
Vice President Dick Cheney was Justice Scalia's special guest on a duck-hunting trip, taken just a few weeks after the Supreme Court granted a writ of certiorari to hear a case in which the Vice President was a named party. An immediate and nationwide call went up for the Justice to recuse himself from the case, culminating in a motion for recusal filed by the Sierra Club. Justice Scalia's response to the Sierra Club's motion for recusal was a twenty-one page memorandum that dissected the motion. His response, though a compelling and thorough dismissal of the arguments raised by the Sierra Club, fails to apply the proper statutory recusal standard with which federal judges and Justices are expected to gauge the appropriateness of recusal. Furthermore, Justice Scalia's partial reliance on the duty-to-sit principle, abandoned by Congress when it amended the federal recusal standard in the early 1970s, is a further indication that something is amiss with his application of federal recusal policy. Part II of this Note discusses a more detailed factual background surrounding the Louisiana hunting trip at the center of the Justice Scalia recusal controversy and the Supreme Court's grant of certiorari a few weeks earlier. Included in this discussion is a thorough analysis of the federal statutory recusal standard that Justices must apply when deciding recusal questions. Part III analyzes Justice Scalia's memorandum in response to the motion for recusal, revealing both the continued presence of the duty-to-sit principle in Supreme Court recusal decision-makings, and the explicit misapplication of the federal recusal standard by Justice Scalia. Part IV illustrates the potential consequences of permitting the Supreme Court to continue to disregard the clear legislative intent behind the federal judicial recusal policy, and suggests two alternatives designed to address the policy concerns voiced by the Court as justification for this continued disregard of the federal statute.
Ducking Recusal: Justice Scalia's Refusal to Recuse Himself from Cheney v. United States District Court for the District of Columbia, 541 U.S. 913 (2004), and the Need for a Unique Recusal Standard for Supreme Court Justices,
84 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol84/iss2/8