« Law School Hiring Thread, 2009-10, Thread Two | Main | Job Talks and Presentations on Film »

Thursday, October 29, 2009

Is Scalia Out of any Gay Marriage Case?

This week, Justices Breyer and Scalia came to the Rehnquist Center at the University of Arizona Rogers College of Law to debate statutory and constitutional interpretation.  Justice Scalia said outright that the idea that gay marriage was somehow protected by the Constitution was absurd.  I didn't think anything of it, because of the justice's outspokenness, but an economist sitting next to me asked: Does this mean that if the David Boies/Ted Olsen suit gets to the Supreme Court, Scalia will have to recuse himself?

It may not be clear from the video, but Justice Breyer borrowed several bits of business from Jack Benny, such as looking out to the audience, folding his arms, and putting his chin in his hand when Justice Scalia said things that were over the top.  He looked like this.

Posted by Marc Miller on October 29, 2009 at 07:18 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Is Scalia Out of any Gay Marriage Case?:


Does SCOTUS have a "closet" recusal policy?

Posted by: Shag from Brookline | Oct 30, 2009 8:37:27 AM


At the risk of being meta, I am not being sarcastic now.

(Sure I'm not....)

Posted by: Jonah Gelbach | Oct 29, 2009 6:20:31 PM

Like Alex suggests, I was questioning the policy behind the ABA rule, rather than its application here. The reach of the ABA Rule in these types of cases is interesting. I read it as applying to a particular case involving particular litigants, rather than statements about the law itself. But most folks do seem to feel that any strong statements about what the Constitution may require in a particular type of case would be off-limits as well.

Posted by: Matt Bodie | Oct 29, 2009 5:17:21 PM


I'd appreciate it if you'd let me know when you are being sarcastic.

I don't really think Scalia should have to recuse himself, particularly because he has said in opinions that he thinks a constitutional right to gay marriage is absurd. Surely committing yourself to an outcome in an opinion should not require recusal.

My underlying thought is related to the idea that Howard articulated so well in the first comment.


Posted by: Jack | Oct 29, 2009 5:17:00 PM

For what it's worth, I'm the economist who was sitting next to Jack at the event and asked Jack about recusal. Here are my two cents:

1. I intended my question sarcastically, at least in part. As others have noted, Scalia's recent expression of his views on the constitution and gay issues wasn't exactly his first time, to wit, writing in dismay:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. (LAWRENCE V. TEXAS 539 U.S. 558 (2003), J. Scalia dissenting.)

So even without Monday's display, it wouldn't have taken a crystal ball to guess where he'd likely come out on the constitutionality gay marriage.

2. On the other hand, Scalia has an interesting record on recusal -- consider his recusal in Newdow and his non-recusal when the Sierra Club sued former VP Cheney. I'm guessing from Matt Bodie's comments that he might think Scalia got those two decisions backward.

3. I think Alex Long makes interesting points. On the other hand, speaking as a layperson, I wonder if the answer he reports receiving from others isn't also backward:

if we are already pretty sure how Scalia is going to vote on the issue just based on his past written opinions, why should it matter if he makes a public statement in which he signals strongly how he would vote? One answer I sometimes get is that there is a strong interest in preserving the appearance of openmindedness, even if we know judges aren't always actually openminded when it comes to a given issue.

If judges are going to biased against my side, might I rather know it in advance? At least then I can focus my attention on judges who might actually be open-minded.

4. On the confirmation issue, and again speaking as a layperson, I am mystified by the (political, if not legal) consensus that nominees should never ever ever discuss their views on whether old cases were rightly decided. I understand the logic of not pre-judging specific future cases, all the above notwithstanding. But cases decided by the SCOTUS have been decided, and for a variety of reasons, they aren't coming back as the same cases, period. So I don't understand what risk to judicial purity arises from discussing the merits or flaws in the reasoning used in cases on the books. It's true that a nominees views on these issues will in at least some cases point strongly toward their behavior in future cases (if you dug Plessy, you probably wouldn't be a Brown fan). But so what? There's no implication of pre-judging a specific future case with its own specific facts from making it clear what your views of relevant precedents are.

On this same argument, it seems to me that Scalia probably doesn't owe anyone a recusal on the gay marriage case Jack mentions, because what he's really said is that he thinks the arguments one would almost certainly use to litigate that case are wrong. It seems to me that one might disagree with Scalia about that conclusion without thinking there's anything unethical about his having reached and broadcast it.

Just my many cents.

Posted by: Jonah Gelbach | Oct 29, 2009 3:23:25 PM

I don't really believe Scalia should have to recuse and didn't mean to suggest as much in my comment. We want judges to be, at some level, legal scholars or commentators, able to speak on legal issues.

Two things bother me. One is Scalia doing this while Republicans are suggesting Sotomayor should recuse herself because she has prejudged Republican-pet issues. In fairness, of course, Justice Scalia is not responsible for the arguments or questions of Republican Senators; Scalis is not suggesting that Sotomayor recuse. The other is that, 23 years ago, Scalia refused to talk about *Marbury* in his confirmation hearing on the ground that the issue could come before the Court. Scalia's opinion in White is, in the eyes of many (notably Vik Amar) the reason that nominees should be required to be far more forthcoming in confirmation hearings.

Posted by: Howard Wasserman | Oct 29, 2009 3:11:23 PM

Jack (or anyone else who has watched the entire video),

For those of us who are too lazy to watch the entire video, could you identify the time in the video when Scalia makes the comment on gay marriage? I'm curious as to what, exactly, he said, particularly since I'm getting ready to teach this issue in my Professional Responsibility class (which it sounds like Matt Bodie might want to sit in on. :) But seriously ... Matt, the ABA's Code of Judicial Conduct requires recusal in situations in which the judge's impartiality might reasonably be questioned, including situations in which the judge "has made a public statement ... that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy." That's the easy answer to your question, but I realize that you are probably really asking why that is the rule. You raise basically the same question I raise in class: if we are already pretty sure how Scalia is going to vote on the issue just based on his past written opinions, why should it matter if he makes a public statement in which he signals strongly how he would vote? One answer I sometimes get is that there is a strong interest in preserving the appearance of openmindedness, even if we know judges aren't always actually openminded when it comes to a given issue. But I don't think you are necessarily way out of bounds. In fact, I suspect, based on Scalia's opinion in Republican Party of Minnesota v. White, that Scalia might actually agree with you.)

Posted by: Alex Long | Oct 29, 2009 2:33:43 PM

Thanks for posting the video, Jack. Looks like a great event.

Maybe I'm way out of bounds here, but why should Justice Scalia have to recuse himself? I'd love to see justices talk more openly about their views and philosophies. It takes a lot of the mystique out of it. Do we really think justices have no preordained views on these things? And if they really didn't, wouldn't that be scary? Now, when it comes to personal and/or business relationships, I'm much more of a hawk on recusals. But stating one's views on issues should be encouraged, I think.

Posted by: Matt Bodie | Oct 29, 2009 11:52:47 AM

One of the GOP memes in the Sotomayor hearings was that she would have to recuse from any case raising the question of Second Amendment incorporation because she already had made up her mind on the issue by deciding a case in the Second Circuit, even in an entirely unrelated case. Sotomayor, to the chagrin of many, actually said that there might be something to the senator's suggestion of recusal. I am waiting for this to bubble back up as the oral argument in the 7th Circuit case draws near. At the same time, Scalia is announcing categorical views on the constitutional issues of the day. This is not the first time he has done this. He announced there was no right to physician-assisted suicide several months before oral argument in Glucksberg.

Why are the Republicans so much better than the Democrats at playing the politics of the federal judiciary?

Posted by: Howard Wasserman | Oct 29, 2009 7:29:33 AM

The comments to this entry are closed.