Scalia Memorandum on the Question

Scalia Memorandum

On the Question of Recusal: Supreme Court Justice Scalia's Memorandum

Justice Scalia's test, or rule, for when a Supreme Court Justice should recuse his or herself, is not a rule created by Scalia, but one upon which all nine members of the Court have come to agree that the elements of test would serve as reason for recusal. The test for recusal is, according to Justice Scalia's memorandum in the case of Richard B. Cheney, Vice President of the United States, Et Al. v. United States District Court for the District of Columbia Et Al. (541 U.S. _(2004)), is as follows:

If the judge's impartiality can "reasonably be questioned."

If the official actions of friends (of a Justice or Justices) were at issue.

If a Justice's relationship with an individual was such that a particular's friends "official" action were called into question, and if the Justice's impartiality could reasonably be questioned; then it would be a case for recusal. The key here is the nature of the friendship, which would have to be considered on a friendship by friendship basis; and, perhaps more importantly, the "official action" of that friend. The official action is described by Justice Scalia as one occurring while the friend holds a government office, such as Vice President in this case; or is employed in an official capacity by the United States Government, and the action that is being called into question is one performed while in the service of that employment or office.

In support of Justice Scalia's position that the elements of his relationship with Vice President Cheney, as cited in this case, do not constitute either a reasonable question of his ability to remain impartial in the case; Justice Scalia cites Microsoft, 530 U.S., at 1302 (p. 18); Justice Scalia also points out that, in this case, there is the absence of a private

In sum, I see nothing about this case which takes it out of the category of normal official-action litigation, where my friendship, or the appearance of my friendship, with one of the named officers does not require recusal (p. 10)..Also, Justice Scalia points out that one of the private respondents in the case did not call for or join in petition for Justice Scalia's recusal, and actually expressed a comfort of confidence in Justice Scalia's impartiality (p. 19). That the respondents were unable to be of a unified and same mind on the subject of impartiality certainly supports Justice Scalia's own confidence that his friendship with the Vice President is neither one that meets the two elements of the test, or is one that requires his recusal.

2) on page 17 of Justice Scalia's memorandum, he writes: "Of course it can be claimed (as some editorials have claimed) that the times have changed, and what was once considered proper? Even as Byron White's day, is no longer so." Here, it appears that Justice Scalia is referring to the arena of public opinion, and he is acknowledging that the voice of public opinion rings very loud in today's world, perhaps more so than it might have in another time or an earlier era. According to the editorials, who often, and erroneously, claim to be the voice of public opinion, those editorialists would have Justice Scalia recuse himself in the name of public opposition to Justice Scalia sitting on the case.

3) Justice Scalia also wrote: "Justice's enjoying friendship with Membership of Congress and officers of the Executive Branch has not been abandoned, and ought not to be (pp. 17-18)." This is to clarify that people of power, whose power is collectively geographically situated in the District of Columbia, or elsewhere, are often times people who have a relationship, in varying degrees of friendship or otherwise, and who come together in their roles of public service in the same setting; and this is a natural course of events around which suspicion should not be assumed.

This is a reasonable element of consideration to be pointed out, because many of the people holding public office and performing public service in the District of Columbia are lawyers, who have varying and extensive careers in law. By reason of this, they do reasonably come together and throughout the course of their legal education and careers become friends and, or, acquaintances. They are often, by virtue of their profession and by virtue of the affluence that often accompanies the rise to power, found to be in the same social circles in support of charity, or in the pursuit of continuing legal education, areas of interest, and, yes, recreationally too.

To abandon these relationships because one has been appointed to a particular office is an unreasonable request, and a practice that would actually cause the relationship to receive an unnecessarily amount of scrutiny. Nor is it any secret, as Justice Scalia points out, "Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials - and from the earliest days to modern times Justices have had close personal relationships with the President or other officers of the Executive (p. 5)."

Case Study

In the case study provided, recusal is the appropriate course of action because: 1) there is a reasonable question of impartiality based on the fact that the voting machines have been seized, and the New York Court of Appeals has upheld results in favor of the challenger. In this case, the relationship, which is one in which Justices Smith and Jones have close and personal relationships with the incumbent, can reasonably be questioned should the decision be against supporting the lower Court's decision.

By virtue of the fact that the incumbent is challenging the lower Court's decision, or the results of the challenger to win the election, and because, presumably, based on the scenario, the Justices were appointed to their bench on the Supreme Court by the incumbent, then it could very reasonably call into question the impartiality of Justice Smith and Jones.

In this case, the official action by the officer in her role as a government official, in filing a petition for review of the New York Court of Appeals' decision in support of the challenger, is in fact an official act meeting the criteria for recusal as cited by Justice Scalia in his memorandum.