Ducks in a Row

6 Pages Posted: 12 Aug 2007


This short essay revisits Justice Antonin Scalia's nonrecusal opinion in the famous Duck Hunt case, Cheney v. District Court.

It is customary for Supreme Court justices to make recusal, or nonrecusal, decisions without comment. To his credit, Scalia departed from that practice, denying the Sierra Club's disqualification motion in a lengthy opinion. In his characteristically mordant style, Scalia skewered the request as ill-founded, unsupported, and totally without merit. If your only information about the issue came from Scalia's opinion, you might well wonder why he spent so much effort refuting such glaringly baseless arguments. But of course, that is the trouble. Scalia's tour de force (as some of called it) displays not a moment's recognition that he was judging himself, much less that he might not be the most objective judge of his own impartiality, and least of all that his unconcealed umbrage actually makes him appear more partisan rather than less.

Despite its forceful certainty, Scalia's opinion is deficient in almost every conceivable way. It is wrong on the facts, wrong on the law, and wrong on procedure.

Suggested Citation

Lubet, Steven, Ducks in a Row. Available at SSRN: or

Steven Lubet (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-6605 (Phone)

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