Monday, January 26, 2004
A recusal and a refusal

Justice Scalia has decided to recuse himself from Newdow case (more popularly known as the Pledge of Allegiance case). Personally, I believe that this was unwarranted. Sure, it is uncommon for Supreme Court judges to express opinions on cases that might come up before them in future, but it has happened in the past. Justice O'Connor's famous remark about being forced to continue for four more years if Gore wins was quoted time and again when Bush v Gore came up before the Supreme Court. Justice Scalia himself has expressed his strenuous opposition to gay marriage on numerous platforms. It does not mean that he has to recuse himself if a gay marriage case comes up before the Supreme Court. I would actually enjoy reading a dissent from Justice Scalia in the Newdow case (if Newdow wins, it will mostly be Rehnquist who writes the dissent).

What is surprising is that the same Justice Scalia went hunting with Vice President Dick Cheney even when a case in the docket names the Veep as a respondent. Such personal relationships are what would cause immense harm to the transparency of the justice system. Even when this was pointed out to him, Justice Scalia has refused to (by not responding at all) recuse himself from the case in re Cheney. Now, I fail to understand this difference.

PS: To be fair to Justice Scalia, no less than Justice John Marshall, arguably the greatest SC Justice ever, has presided over extremely important cases like Marbury v Madison, though it intimately involved himself!

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