The Scales of Scalia


Antonin Scalia has a reputation as a brilliant conservative jurist, but every time I delve into one of his decisions I emerge from the gloom wondering how he came by it. His decisions seem to me riddled with puerile, self-indulgent justifications and facile, even superficial argumentation based more on ideology than law. Even if his reputation was for brilliant legal twists and turns to get the law to mean what it doesn’t mean, he wouldn’t deserve it. For the most part, his wordy interpretations are little more than high-blown legal rhetoric, thin on law and thick with presumption. He’s tricky and manipulative, clever but not “brilliant” by a long shot.All these qualities are on display in a 21-page memo (pdf file) defending his refusal to recuse himself from sitting in judgment on his friend Dick Cheney’s refusal to release the records of his Energy Commission. In summary, his arguments amount to:

1. He’s been going duck hunting for a long time.
2. He was never alone with Cheney and they never talked about the case.
3. Everybody does it, so strict recusal policies would cripple the Court.
4. The SCOTUS Recusal Policy of 1993 says he doesn’t have to.
5. Tradition says he doesn’t have to.
6. It’s a “run-of-the-mill” legal case, so he doesn’t have to.
7. Cheney isn’t singled out in the complaint as the party responsible for “caus[ing] the involvement of energy executives.”
8. And anyway he ended up buying round-trip tickets to get back so the trip cost exactly what it would have cost if he hadn’t gone down with the Veep.
9. Besides, he knows the rules and we just have to trust him.

When I was a kid we used the same kind of excuses–“I wasn’t there, and even if I was there I didn’t do it, and even if I did it I didn’t mean to, and even if I meant to I wouldn’t have if somebody else hadn’t made me, and anyway it was an accident.” Yeah, right.

I’m not going to debunk all eight excuses reasons point-by-point–that would try your patience and my low tolerance for BS–but I want to take a couple of the most egregious rationalizations for a spin so we can see how the mind of the most “brilliant” jurist on the SCOTUS actually works. I think when we’re done, the 2000 Florida outcome will no longer be a mystery.

1. He’s been going duck hunting for a long time.

It was, of course, all perfectly innocent.

“For five years or so, I have been going to Louisiana during the Court ’s long December-January recess, to the duck-hunting camp of a friend…”

No biggie. It’s not like he went there specially to talk to Dick or something. By-the-by, how did Cheney wind up going along this year? Why, Tony invited him.

“I learned that Mr. Carline was an admirer of Vice President Cheney. Knowing that the Vice President, with whom I am well acquainted (from our years serving together in the Ford administration), is an enthusiastic duck-hunter, I asked whether Mr.Carline would like to invite him…” (emphasis added)

Just a couple of buddies out to bag a few birds.

2. He was never alone with Cheney and they never talked about the case.

Of course the unfortunate Veep has to fly Air Force Two on this little junket “[b]ecause of national security requirements”, so being a good buddy and all he invited Tony to fly down with him. Curiously, though Scalia makes a big point of swearing that he never talked to Cheney on the hunt itself, he says nothing about what they might or might not have talked about on the plane down. Since this is a legal mind we’re talking about, one has the right to draw a conclusion from this deliberate omission: he must have talked to Dickie during the flight. A prosecuting attorney would not only be justified in drawing that conclusion from Scalia’s deliberate lack of comment, he would be justified in going further and assuming that they talked about Cheney’s case, else why would Tony be so adamant about the hunt and so silent about the flight?

In a cross-examination, a prosecutor could run a freight-train through a gap like that, making mince-meat out of him just for leaving it out, never mind what might have been said. For a “brilliant legal mind”–hell, for a sub-par legal mind–it’s a childish mistake.

As for their host, Mr. Carline, being an “energy executive”, why that’s just nonsense.

“He is not, as some reports have described him, an ‘energy industry executive…’”

No? Then what is he?

“He runs his own company that provides services and equipment rental to oil rigs in the Gulf of Mexico.”

Ah. I see. Not an “Energy Industry Executive” but an “energy industry executive.” It’s a distinction I hadn’t thought to make. See how Scalia’s mind works? If the guy isn’t CEO of Shell, he’s hardly even in the business.

3. Everybody does it, so strict recusal policies would cripple the Court.

I’ll let La Dowd take this one. Her talent for snark is perfectly suited to the arrogance of Scalia’s point.

Res ipsa loquitur, baby. Why should the justice who put Dick Cheney in the White House stop helping him now? It’s the logrolling, stupid!”Many justices have reached this court precisely because they were friends of the incumbent president or other senior officials,” the justice sniffs.

That elite old boy network can really help in those dicey moments when you need to stop the wrong sort, like Al Gore, from getting ahead.

You don’t stop ingratiating yourself with your powerful friends and accepting “social courtesies” from them just because you get on the court. Ingratitude is a terrible vice.

Anyway, what’s the point of being in the ultimate insiders’ club if you have to fly coach, eat at IHOP and follow silly rules on conflict of interest?

Yeah, really. The one thing that comes through most clearly in this memo is the sense that Tony just doesn’t get that whole “appearance of conflict of interest” thing. What’s the big deal? he seems to be asking all the way through. So we shot some ducks, so what? We’re buddies. Buddies do stuff like shoot ducks together.

Yeah, Tony, that’s the fucking point, you bonehead! Cheney’s a buddy of yours and you’re sitting in judgment of his reputation and behaviour. Don’t you see how a buddy-buddy trip on the Veep’s private plane to a private hunting ground as guests of an “energy industry exec” looks when the case you’re going to judge examines the same Veep’s cozy relationships with “energy industry execs”? Can you, brilliant legal mind that you are, really not see that? Some actually great legal mind (Holmes? Brandeis? I forget) said that for the SCOTUS to function credibly it must be above “even the appearance” of justifiable reproach. Tony just can’t fathom that. His typical-5-year-old muling, waspish, “But I didn’t do anything!” doesn’t just miss the point entirely, it assumes that we should know he didn’t do anything.

Justice Scalia says, “The people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, in an atmosphere where the press will be eager to find foot-faults.” He observes that it would be nonsensical for him to recuse himself simply because the press has the effrontery to point out when someone has done something wrong.We, the press, are supposed to be the handmaidens and the manservants of our rulers. If we fulfilled our duties properly, our reports would go something like this:

In an admirable spirit of uncommon objectivity, in the pursuit of truth, justice and the American way, Associate Justice Scalia made time to poke around in the marshes of Louisiana with the equally scrupulous Dick Cheney, and then, refreshed by a well-deserved plane trip at our expense, he continued to transmit his enlightenment to a grateful nation.

Yup, that’s the tone of the memo, alright: “Who do you think you are, anyway? You peasants should be grateful a brilliant legal mind such as moi‘s would deign to serve at all, and yet you dare question my motives? my purity? my incandescent genius? Shame on you!” This is the guy who parks right in the middle of the fire lane at the mall because he’s special. This is the kid who thinks he should have your seat at lunch because his Dad drives a Beemer and your Dad drives a Chevy. Rules for the rest of us don’t apply to him because, well, because they don’t, and who are you to question the way things are or deny the privileges of the privileged? Nobody, that’s who. And just to prove it:

8. And anyway he ended up buying round-trip tickets to get back so the trip cost exactly what it would have cost if he hadn’t gone down with the Veep.

Wait a minute…? Round-trip tickets? For a one-way flight? Isn’t that…illegal? Well, yeah, sort of.

Justice Scalia did not say how much he paid for his round-trip ticket, but it seems fair to assume that he bought what is known as a “throw-away ticket” — something the airlines expressly prohibit. US Airways, for example, does not allow the “use of round-trip excursion fares for one-way travel,” and reserves the right to refuse to board those who try to use them and to charge them the difference between the round-trip and one-way fare.*******************

Of course, maybe Justice Scalia plans to use the return half of his ticket later. If he does not, however, he in essence has admitted to buying a ticket under false pretenses. He made a promise without any intention of fulfilling it. Justice Scalia is no doubt familiar with the legal term for such an act: it’s called promissory fraud.

The airlines’ policy may be annoying, inconvenient and customer-unfriendly. But they can legally insist that their passengers abide by it.

Unless that passenger is very very special.

And this is “our most brilliant legal mind”? Oy, are we ever sunk.

But sophistry and adolescent rationalizations aren’t the worst of it. The worst of it is that a chunk of the memo comes within legal millimeters of an admission that Scalia has already decided Cheney is innocent. I want to quote it directly so you can see for yourself just how close it is.

Richard Cheney ’s name appears in this suit only because he was the head of a Government committee that allegedly did not comply with the Federal Advisory Committee Act (FACA), 5 U.S.C. App.§2,p.1, and because he may, by reason of his office, have custody of some or all of the Government documents that the plaintiffs seek. If some other person were to become head of that committee or to obtain custody of those documents,the plaintiffs would name that person and Cheney would be dismissed. (emphasis added)

The Sierra Club suit claims that it was Cheney, personally, who made the decisions about who his Energy Committee would listen to, and Cheney, personally, who decided not to release the documents the Appeals Court told him to release. It isn’t, as Scalia notes, just about getting the release of those documents; it’s about Cheney’s refusal to comply with the law–FACA–when ordered to do so. In the graf above, Scalia is essentially committing himself to the view that anyone who was Head of that Committee would have done the same thing–which is precisely what the case is supposed to decide. The Sierra Club is saying Cheney broke the law by doing something no other official in his position would have done, and Scalia has already decided that they’re wrong. In a self-serving attempt to justify his own questionable actions, he has let slip a strong hint that his mind is already made up even as the case is months away from being heard. His own summary of the case as he understands it admits this:

I am asked to determine what powers the District Court possessed under FACA,and whether the Court of Appeals should have asserted mandamus or appellate jurisdiction over the District Court.

So for him the question is shaded heavily in Cheney’s direction. Instead of asking, “Is VP Cheney guilty of defying a lawful order of the Appeals Court?”, Scalia is asking, “Is the Court of Appeals guilty of writing an unlawful order?” The difference may seem minor, but in fact that shading suggests quite strongly that Scalia is, at a minimum, already in Cheney’s corner and at a maximum has made up his mind that Cheney may have been the victim of an “activist” Appeals Court. This is hardly the sort of neutral language one should expect of a judge, especially a Supreme Court Justice. Re-stating the case so it favors one side over the other isn’t exactly “objective”.

Of course, any judge is allowed to approach a case from whatever angle he wishes–after the case has been heard. But before? He has as much as told the Sirra Club’s lawyers that as far as he’s concerned, they’re wasting their time.

Scalia shouldn’t recuse himself. He should be removed from the case for prejudice.

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One response to “The Scales of Scalia

  1. Pingback: Fat Tony Proves He Is What He Always Was | Arranology

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