« Professional Identities | Main | An Odd Historical Milestone »

Tuesday, April 25, 2006

Fitzie on Scalia's Mistake

Over at Law.com, my law school classmate Brian Fitzpatrick is stirring the pot with an op-ed entitled Scalia's Mistake.  Here's the lede:

Supreme Court Justice Antonin Scalia is an opinionated guy. I know. I clerked for him four years ago. Every once in a while, however, Scalia's love of intellectual engagement leads him to make a mistake. He made one of these mistakes recently. No, I am not referring to his now-famous Sicilian hand gesture. Nor am I referring to comments he made last month during a speech he delivered to a university in Switzerland. Scalia stated his view that enemy combatants captured by American forces had no right to a trial in civil courts. He did so even though a case presenting this question was arguably pending on the Supreme Court's docket.  Rather, the mistake I am talking about occurred two years ago, when Scalia agreed to recuse himself from a case presenting the question of whether the Pledge of Allegiance was unconstitutional. Back then, Scalia made similar remarks to a public audience, making it clear that he thought the pledge was constitutional, even though a petition asking the court to review a lower court's conclusion otherwise was pending on the court's docket. Scalia's mistake was not making the remarks, but agreeing to recuse himself. There is nothing wrong with Supreme Court justices expressing their views on issues pending on the court's docket.

Is Fitzie right? Open minds want to know.

Posted by Administrators on April 25, 2006 at 12:10 AM in Constitutional thoughts | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Fitzie on Scalia's Mistake:

» Scalia's Mistake from PointOfLaw Forum
Brian Fitzpatrick argues (persuasively, I think) that Justice Scalia should not have recused himself in the pledge of allegiance case. "There is nothing wrong with Supreme Court justices expressing their views on issues pending on the court's docket." ... [Read More]

Tracked on Apr 25, 2006 7:37:18 AM



Rhenquist's argument as expressed in his concurrence? But his argument was, how to put this, bizarre. He asserted federal authority over the Florida court's interpretation of Florida law because... the constitution delegates the decision to Florida! He interprets the provision of the constitution saying "“[e]ach State shall appoint [electors], in such Manner as the Legislature thereof may direct,” to imply an assertion of federal authority over the interpretation of said legislature's commands, wholly notwithstanding that this constitutional text gives no hint that the state legislatures' directions are to be interpreted by anyone other than the entity that normally has that power, i.e. the state courts.

So he cites the express constitutional delegation of power to the states as an excuse for taking the decision out of the hands of the state authorities. He then goes further and cites the express (and redundant) statutory delegation of power to the states, 3 U.S.C. § 5, again for the purpose of taking the decision away from the states. He then went even further, and cited the Florida statute giving authority to resolve election disputes to the state courts, yet, in his supposed deference to the Florida legislature, he ignored it.

It's totally topsy-turvy, like something out of Alice in Wonderland, or perhaps 1984. It's the dumbest supreme court opinion I've ever read, with the possible exception of the infamous Blackmun baseball antitrust case, and at least that one contained something resembling standard legal reasoning.

Posted by: Paul Gowder | Apr 25, 2006 9:47:19 PM

I think that's why many of us think that Bush v. Gore, for example, was such a travesty. It's not that there were five republican justices on the court, it's that the five republican justices (and the four democratic ones, admittedly) were unable to set aside their ideological committments for the case.It's funny you should mention Bush. My post that I linked to at the top of the thread takes note of an essay in the Georgetown Journal of Legal Ethics a couple of years back, which arguedthat two Justices in Bush v. Gore should have recused themselves: “both of them violated the federal judicial conflict-of-interest statute and the Constitutional due process clause by participating in Bush v. Gore” . . . it will come as no surprise whatsoever that the two who the author thought should have recused happened to be on the same side! And guess what - it wasn't Gore's side! That's right, by sheer mind-boggling co-incidence, two critical votes in Bush were actually void. “[E]ven if it lacked a quorum [as a result of recusals by Scalia and O'Connor], the Court would have been able to decide Bush v. Gore,” Neuman notes, before deadpanning, “although the result would have been different.” I'm willing to bite (tentatively) about Bush My difficulty with that case isn't that "the five republican justices (and the four democratic ones, admittedly) were unable to set aside their ideological committments for the case," it's that I don't buy the equal protection argument. I think Rehnquist's opinion has it right, but given the refusal of O'Connor and Kennedy to sign on to that opinion (see The Path to Florida in VANITY FAIR, Oct. 2004), I can understand that the pressure to have a straight majority opinion on those extraordinary circumstances might well have outweighed the fact that Kennedy got to the right result for the wrong reasons and pursuaded the Chief, Scalia and Thomas to join that opinion rather than force a messy 2-3-4 split. You know that I'm not going to approve of that sort of thing, because I'm a purist, and I'm willing to say "hang the consequences" usually - but in a case of dire and pressing national import, I can understand why they were willing to compromise. I hope that I'd have been able to compromise in that situation and join Kennedy's opinion, too.

Posted by: Simon | Apr 25, 2006 8:21:52 PM


Given that we actually agree, I don't want to push this too far into the stratosphere, but I can actually make a principled defense of the claim that we should get "as close to neutrality as possible" without losing Posner's non-case-implicating writing. It goes something like this. Neutrality is meaningless standing alone, the question is always "neutrality with regard to what." You're arguing that my claim "as close to neutrality as possible" means "as close to neutrality about issues as possible." If I were making that claim, I would indeed be forced to say that Posner should stop writing, etc.

But I think of myself as making a different claim about the object of neutrality. I think that the only kind of neutrality that matters when we're worrying about judicial legitimacy is neutrality about cases. I justify this based on the fact that the chief claim that citizens make on the judiciary is that it be able to give every person that comes before it a fair shake. That's our notion of procedural due process, etc.: that when you or I walk into a courtroom, we have reason to believe that our arguments have a chance of convincing a judge, even an ideological judge, that this case is different.

This value isn't really threatened when a judge comments, in general, that he doesn't like abortion or he likes school prayer, because the public does know that the judge holds that opinion. On the other hand, when there's a school prayer case on the court's docket, the person whose case that is can't help but feel that he's not going to get a fair shake if Nino is giving speeches all-but-denouncing him, or even hinting that the case is prejudged by virtue of suspiciously timed issue speeches.

So my position is still that they must get as close to neutrality as possible, but they must do so on the dimension of cases, not on the dimension of issues.

I think that's why many of us think that Bush v. Gore, for example, was such a travesty. It's not that there were five republican justices on the court, it's that the five republican justices (and the four democratic ones, admittedly) were unable to set aside their ideological committments for the case.

That's also part of the reason why the question Orin raises on his blog (why do we have different standards what justices should say on their issue positions for senate confirmation hearings and pre-argument commentary) can only be answered one way: the Senate is free to inquire into issue positions as part of its democratic/constitutional role, but it's accepted that the nominee won't address specific cases, and it's equally accepted that it's inappropriate for a justice on the bench to expound on specific cases.

Posted by: Paul Gowder | Apr 25, 2006 7:33:50 PM

Paul, Ted's comment seems a like a reasonable question to me. But let's assume it away. It still seems to me that once you narrow your focus to "issues pending before the Court," you're adopting option #2 in my menu above -- defining the word "neutral" in the phrase "as neutral as possible" in a way that allows some universe of behavior that you and I agree should not be discouraged. That's fine: as I suggested, I am closer to your side of the argument in the first place. But it does suggest that we are not really striving for absolute judicial neutrality, or of encouraging judges to be "as neutral as possible." If we were, why stop with issues pending before the court? Why not offer Posner the choice between writing opinions and writing books? Of course, you may say, "Well, duh; naturally I meant something less than 'as neutral as possible.'" All I want to suggest is that, as with the empty concept of equality, positing the value of neutrality itself cannot be an answer to the interesting questions that you, Simon, and Dan pose here, because it's a contested concept. We have to argue about what it means and about the pluses and minuses of 'neutrality' -- or perhaps, as in your comment above, we have to say that we're less concerned with neutrality than we are with the appearance of impartiality. In that argument, to reiterate, I'm not sure I can agree with Fitzpatrick that Scalia should not have recused in Newdow.

Posted by: Paul Horwitz | Apr 25, 2006 6:36:04 PM

Paul:we wouldn't have to shut up Posner generally. We'd just have to shut him up on issues pending before the Court.Oh, so the problem is only as it relates to a case that is pending? If Scalia had made his comments - whether a verbatim recitation of the Lee dissent or something else - the day before Elk Grove made it onto the Court's docket, that would have been okay? What a difference a day (might have) made!

Posted by: Simon | Apr 25, 2006 6:31:44 PM

PG: Does Posner comment on issues pending before the 7th circuit today?

Absolutely. He's written on abortion, on privacy rights, on antitrust. All these issues arise before the Seventh, and, if I recall correctly, a litigant even moved to disqualify Posner from an antitrust case because of it.

Posted by: Ted | Apr 25, 2006 6:25:59 PM

But Paul, we wouldn't have to shut up Posner generally. We'd just have to shut him up on issues pending before the Court.

Does Posner comment on issues pending before the 7th circuit today? I don't think he does. Much as it pains me to praise Posner for anything, I think he exercises restraint on that score. That's all I ask of Scalia.

Posted by: Paul Gowder | Apr 25, 2006 5:50:02 PM

Isn't that last statement too strong? I agree more with you on this issue than with Fitzpatrick or Simon. But surely there are *some* good reasons, even leaving the First Amendment aside (anyway, it's a rule, not a reason), why we should not strive to be as close to neutral "as humanly possible." I know for many people it's a mixed example, and that he may have his excesses, but I would utterly hate to miss out on the post-judicial-appointment Posner oeuvre, all gazillion pages of it, because we want our judges to be as close to neutral as humanly possible. We could respond to this by saying, yes, by all means shut up Posner and others who might contribute to public debate while on the bench; it's worth it overall. Or we could respond by redefining "neutral" in ways that essentially draw various exceptions to the general rule. But I think the best response is to acknowledge that neutrality is one good to be considered here, and perhaps the most important good, but not the only one.

Posted by: Paul Horwitz | Apr 25, 2006 5:26:38 PM

Simon: we're talking about distinctions of degree, not kind. The most neutral judge would clear his mind of all preconceptions before hearing a case. The least neutral judge would go to Cozumel with his clerks. Scalia is somewhere in between, but I fail to see why we shouldn't aim to get as close to the neutral side as humanly possible.

Posted by: Paul Gowder | Apr 25, 2006 5:06:13 PM

I think that such behaviour would be grossly inappropriate, yes, but I'm not sure that it's really the same thing. If the court actually took the case (perhaps simply to overrule Lee), I think that you'd at least have to read the briefs. A judge has to engage intellectually with the arguments in a case to participate, even if it is only to the extent of reading the briefs, showing up at conference and saying, "look, I don't see anything in the briefs that changes my mind from what I said in Lee, so you all know how I'm going to vote."

Regarding the ninth amendment, you know, the funny thing is that my attempts to turn our discussion from last August into an all-inclusive cards-on-the-table explanation of my view on the ninth and tenth amendments is still stuck in drafting hell, after innumerable re-writes and at least two fresh starts. Melissa Waters wrote a very readable and interesting - read "terrifying" - essay that formed part of her introduction at Concurring Opinions, and I've been trying to write a reply ever since; the experience with the ninth/tenth essay doesn't bode well for its chances of ever getting done. I find that it's very easy to start writing and get about six pages done, and then getting from that draft to a finished essay is very difficult for me.

The point is that, had I ever managed to finish writing it, I would refer you to it. Sadly, that's not an option. ;) But anyway, I do not, and never have, denied that the Ninth (and Tenth) Amendment(s) have meaning; what you and I disagree over is what they mean.

Posted by: Simon | Apr 25, 2006 3:12:19 PM


Let me pose a counter-hypo then. Suppose another establishment clause case, indistinguishable from Lee v. Weisman, comes up. Would you be concerned if Scalia skipped the oral argument, refused to read the briefs, and went waterskiing with his clerks instead, calling the clerk of court from Cozumel to order his dissent from Lee copied and pasted into the current case?

If that concerns you, you may be pressed to explain why he has to sit around and listen to arguments that he knows won't move him.

I'm not so worried about sec. 455, because this is more an ethical issue than a legal one. (Also, I'm not really sure whether Congress has the Constitutional authority to decree when a Supreme Court justice shall recuse him/herself from a case. Does anyone have any thoughts/know any law on that? It would seem to run afoul of separation of powers.)

(Ok, I've struggled, but I just can't resist the temptation to ask you why you're more concerned about giving meaning to 28 U.S.C. 455(a) than the Ninth Amendment, per previous arguments.)

Posted by: Paul Gowder | Apr 25, 2006 2:39:49 PM

To me, that question isn't just a good question, it's dispositive. Surely, nobody who read the Lee dissent could seriously claim to not know what Scalia thought of the claim that the pledge of allegiance might be unconstitutional. Why would it make any difference whether Scalia said so in a dissent or in a speech?

I don't think that Scalia - or any other member of the court except our Fearless Leader and Brother Sam - should recuse themselves from Gonzales v. Carhart because they have joined or written opinions and given speeches that leave very little doubt as to their opinion of the constitutionality of abortion. I just can't believe that anyone would credibly doubt that Justice Ginsburg's mind isn't set as far as Roe is concerned, or that she is open to being reached by argument on the case before him. Ditto Justice Breyer on the constitutionality of the sentencing guidelines. We would not expect a judge to re-invent the wheel vis-a-vis judicial review on every case which called for judicial review, which suggests a certain level of closed-mindedness vis-a-vis Marbury. So whatever circumstances might merit recusal, I find it impossible to agree that a case which raises constitutional questions on which a judge has known opinions as to a body of law rises to that level.

To summarize here what I already opined in the post I linked to above, in my view, a justice of the Supreme Court should recuse themselves in circumstances meeting 28 U.S.C. §455(b): when they personally stand to gain from the outcome, or when they cannot be impartial towards the litigants, as opposed to the body of law (that is, if Michael Newdow had killed Scalia's cat, it might have been reasonable to ask Scalia to recuse, but not just because Newdow brought up a legal point on which Scalia had known opinions), or in extraordinary cases (for example, our Fearless Leader's Hamdan recusal, wherein to sit on the case, he would have to review a judgement in a case he had participated in on the lower court).

The problem my opinion - and I admit that it's a pretty serious problem - is that it would seem to deprive §455(a) of any coherent content (presuming, as we must, that it had any in the first place), something which I routinely bemoan the Supreme Court for doing (recall my disapproval of Kelo for doing precisely this). §455(a) has to mean something, and the fact that it merits its own subsection, rather than being simply §455(b)(6), or whatever, suggests that it has independent effect from §455(b). Nor can we reasonably conclude that §455(a) merely introduces in general terms a list of specififically enumerated circumstances, as does the general welfare clause in U.S. Const., Art.I, §8, because §455(b) introduces its list of specific recusal-meriting circumstances by declaring that a judge "shall also disqualify himself in the following circumstances" (emphasis added).

So my analysis does have a pretty serious hole in it, but (a), respectfully, so does yours, and (b) since I'm not a judge, I can be allowed the luxury of the odd inconsistency as long as I know it's inconsistent, I think (or at least, some latitude while resolving it). ;)

Posted by: Simon | Apr 25, 2006 2:12:06 PM


Good question.

And the answer, I suppose, is that it would be inappropriate to ask a justice to recuse himself for saying through unofficial channels exactly what he said through official channels.

However, I would still be uncomfortable with him doing so, because such a public reading would communicate the message to the public that his mind was set, that he wasn't open to being reached by argument on the case before him.

Posted by: Paul Gowder | Apr 25, 2006 1:42:20 PM

Would you be willing to argue that, if in the Scalia speech that led to his recusal in Elk Grove, he had merely stood before a friendly crowd and read aloud his dissent from Lee v. Weisman, without further comment, he would still have to recuse himself from Elk Grove?

Posted by: Simon | Apr 25, 2006 1:17:55 PM

Do we really need to repeat these old, old, old arguments?

You don't understand. Scalia can never be wrong. He's like Bush in that respect.

Posted by: a-train | Apr 25, 2006 12:04:39 PM

No, he's not right.

I think our understanding of the duties of any judicial officer is well expressed by the ABA's Model Code of Judicial Conduct, which includes the following (Canon 3(B):

(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require* similar abstention on the part of court personnel* subject to the judge’s direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.

(10) A judge shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial* performance of the adjudicative duties of the office.


Sections 3B(9) and (10) restrictions on judicial speech are essential to the maintenance of the integrity, impartiality, and independence of the judiciary. A pending proceeding is one that has begun but not yet reached final disposition. An impending proceeding is one that is anticipated but not yet begun. The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition.

Brian addresses the canons, admittedly. Specifically, he declares that they are "unconstitutional," based on Republican Party of Minnesota v. White. That assertion misses the point entirely, since the issue isn't what judges should be regulated for, with the force of law, but rather how they should exercise their own discretion to remove themselves from a case.

Of course, the canons are written the way they are for good reason: if the judiciary is to maintain any public legitimacy, it must not only strive for impartiality, it must try and maintain the appearance of impartiality. Do we really need to repeat these old, old, old arguments?

Posted by: Paul Gowder | Apr 25, 2006 11:26:09 AM

He is not only absolutely correct, but he is apparently somewhat late to the party. I wrote a post three weeks ago, http://simondodd.org/noise2signal/default.asp?view=singleentry&entry=294, 3/30/06, concluding that "Scalia should not have recused himself in Newdow - that is, not only didn't have to, but affirmatively should not have - and he should not recuse himself in Hamdan [either]."

Posted by: Simon | Apr 25, 2006 8:29:26 AM

The comments to this entry are closed.