Do Previous Opinions Recuse Scalia From Recusal?

Do Previous Opinions Recuse Scalia From Recusal?


Weekly Standard writer Daveed Gartenstein-Ross emailed me via The Moderate Voice about my recent Scalia post. He seems to think that Scalia’s recent speeches are perfectly within reason.

And after reading his article, I think Daveed has a valid point:

BY ALL ACCOUNTS, Scalia’s Freiburg speech did not go beyond the views he already expressed in his Rasul and Hamdi dissents. The applicable legal standard for recusal is supplied by 28 U.S.C. S 455(a), which states: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Scalia’s critics argue that his Freiburg speech calls his impartiality into question. But to show that their questions are “reasonable,” they face two tough questions: Since Justice Scalia’s speech didn’t go beyond his Rasul and Hamdi opinions, are those dissents already grounds for recusal? And if not, is their position simply that justices cannot speak publicly on matters where they have already expressed a view through published legal opinions?

It would, of course, be unprecedented to require a Supreme Court justice to recuse himself from deciding issues on which he has already expounded in past opinions. Justices routinely use their dissents to shape future court decisions. Chief Justice Rehnquist’s lone dissents in the 1970s became the foundation of the federalism revival of the 1990s. And after Justice Stevens dissented in the 1986 Bowers v. Hardwick sodomy case, he had the pleasure of joining a majority opinion 17 years later that quoted his dissent approvingly: “Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here.”

But wait, there’s more…

In what may be the starkest example of a justice pre-announcing his position, Justice Harry Blackmun announced in a 1994 dissent in a death-penalty case: “From this day forward, I no longer shall tinker with the machinery of death. . . . It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.” Justice Blackmun cited that dissent repeatedly in his subsequent opinions; he was never required to recuse himself from death-penalty petitions.

So yes, if this is the precedent I see no problems with Scalia hearing the Hamdan v. Rumsfeld case. You can’t expect one judge to act differently than others. Now, if these judges were wrong, please enlighten me, but right now I think Scalia is in the right.

In other news, Scalia flips the bird in church.

Oh Antonin!

  • Meredith

    Well, certainly he doesn’t have to recuse based upon prior court opinions. I’m not sure what the rules are on talking (to the media or in public) about views you have already expressed in a court opinion. I really doubt that he needs to recuse. This is all par for the course with Scalia though. He’s such a character!

    As far as flipping the bird after church – if you are now or grew up Roman Catholic, this is probably not all that shocking. In fact, I know of people that have flipped the bird IN church, during mass – of course, that was 4th grade.

  • Brian in MA

    Scalia flipped the bird. Big deal.

    I know 6 year olds who can recite for me at least 6 swear words. Our society has disintegrated to the point where vulgarity is no longer novel.

    Besides, Scalia has had a tough few weeks, he recently got heckled by a bunch of liberal nobodies who just wanted to make it on TV (apparetnyl showing thier inherent stupidity on TV was something to be proud of).

  • Justin Gardner

    Besides, Scalia has had a tough few weeks, he recently got heckled by a bunch of liberal nobodies who just wanted to make it on TV (apparetnyl showing thier inherent stupidity on TV was something to be proud of).

    Brian, with each passing comment you make the centrist flame burn even brighter. Thank you so much for your contributions.

  • GN

    He may not HAVE to recuse himself, but he SHOULD.

    Flipping the Bird
    More people should “flip the bird” in Church. It shows they are human.

  • Anton

    I want mp3 player. What will advise?

  • Dave

    An interesting read, thanks.