'Any Good Hunting?': When a Justice's Impartiality Might Reasonably Be Questioned
55 Pages Posted: 21 May 2016 Last revised: 7 Oct 2016
Date Written: October 5, 2016
By every account, Justice Antonin Scalia was an extraordinarily gifted, insightful, entertaining, charismatic, and combative (usually engagingly so) judge and individual. But in the area of a judicial code of conduct, Justice Scalia simply did not follow the standard in effect since 1974 under the Judicial Code of Conduct and 28 U.S.C. §455(a) that a judge “shall disqualify” himself in any case where his “impartiality might reasonably be questioned.” Instead, Justice Scalia followed the standard in effect for the 50 years before under which his own “opinion” of his impartiality was dispositive without any objective review. To do this, Justice Scalia used a loophole of viewing the Judicial Code of Conduct, which technically covers every Federal judge except a Supreme Court justice, as just “a key source of guidance.” He then evidently treated the identical recusal standard under 28 U.S.C. §455(a), which expressly applies to Supreme Court “justices,” as infirm because the application of the Congressionally-legislated standard to “Article III” Supreme Court justices has not been tested in court. While in a limited sense Justice Scalia may thus been treating the Code of Conduct and the recusal statute as “a key source of guidance,” his actions, including the 21-page March 2004 memorandum against his recusal in the Cheney v. United States District Court case, are only explainable on the basis that he was following the pre-1974 standard for recusal under which his subjective “opinion” of his own impartiality controlled without any review under an objective, reasonable-person standard.
Justice Scalia’s partiality in cases before the Court was most explosively revealed in a nearly unnoticed radio interview on Armed American Radio given on February 14, 2016, the day after Justice Scalia’s death, by Alan Gottlieb, the founder of the Second Amendment Foundation, about the litigation that culminated in Justice Scalia’s groundbreaking 2008 opinion in Heller v. District of Columbia:
“I ... had the pleasure to spend a day with [Justice Scalia] in Nuremberg, Germany when he came to accept an award from the World Forum for the Future of Sports Shooting Activities [in March 2007].... I guess this is something that I probably haven’t shared with anyone on the air, I’ve talked to some people about it privately. But that was the day in fact that the appeals court in Washington, DC ruled against the city in DC and knocked down the DC gun ban and both Scalia and I knew that it was going to be headed to the Supreme Court and that the city of DC was going to appeal it. So we didn’t talk directly about the case itself because it would have been like sort of a conflict, but he did say something to me that was very encouraging to me at the time. And that was, he said, “You know, Alan, it takes four votes on the Supreme Court to hear a case, and it takes five to win it. If I don’t think we have the five to win it, there won’t be four to hear it.” And that just made me feel like I knew at that point in time that if the Supreme Court took the Heller case, that we were going to win it.”
Justice Scalia’s conversation with Mr. Gottlieb, whose gun rights foundation was an amicus in the case (and which filed another gun rights case against the City of Chicago the next day) was clearly improper, and it shows that Justice Scalia had made up his mind about Heller before the Supreme Court had even received the first papers. Another interview reveals that Justice Scalia held a “real roundtable discussion” with “half a dozen” gun rights lawyers the day before.
Compounding the issue of not following the modern standard on impartiality, Justice Scalia regularly failed to disclose honoraria, outside income, and gifts that he received primarily in the form of high-end hunting trips over the last two decades of his service. Without information about the honoraria, outside income, and gifts, potential conflicts could not be identified and considered. The undisclosed hunting trips included not only the infamous 2004 trip on Air Force Two for duck-hunting in Louisiana with Vice President Cheney while Vice President Cheney’s case was pending before the Court, but also completely unnoticed trips with relatives and friends to such locations as the 8,000 acre Galena Plantation in North Mississippi, which may be a top quail hunting lodge but also celebrates the relocated and restored log cabin of the first Grand Wizard of the Ku Klux Klan. On another November 2015 hunting trip to Louisiana, an internationally-renowned chef was brought into prepare three-star meals for Justice Scalia along with Vice President Dick Cheney, former Secretary of State James A. Baker, III, and lobbyist and former Republican National Committee Chair Haley Barbour as if it was a White House State Dinner. Other undisclosed hunting trips were with the leaderships of national hunting organizations like Safari Club International, the National Wild Turkey Federation, Ducks Unlimited, and the Order of St. Hubertus. The extravagant February 2016 weekend at the Cibolo Creek resort with the leadership of the Order of St. Hubertus where Justice Scalia passed away would be valued conservatively at $10,000 for the justice and a guest, including a chartered jet from Houston International Airport and guided hunting of pen-raised birds. Former federal district judge Charles Pickering, whose son’s Congressional district was redrawn in a case the Supreme Court decided in 2003, estimates that he personally took Justice Scalia on 40 hunting trips. According to Mississippi Governor Phil Bryant, Justice Scalia stayed at the Governor’s mansion and went duck hunting with him while cases involving the Affordable Care Act, which Governor Bryant sought to block with executive and legal actions, were before the Supreme Court. Similar to the Mississippi governors who preceded him in resisting school integration, Governor Bryant has resisted the benefits of the Affordable Care Act for over 300,000 Mississippians as”a socialist takeover of health care forced down the throats of the American people” and has said that the decisions of “a majority” of the Supreme Court justices, “including, again, the Chief Justice” are “incredibly troubling to me.” More recently, in the Western North Carolina mountains, Justice Scalia hunted with a State elections board chair who is a named defendant in two cases over voter suppression measures and Congressional redistricting that are now before the Supreme Court.
Many important decisions, including the 2008 anti-gun-control decision in Heller, which Justice Scalia called his “proudest” achievement, must be asterisked because Justice Scalia did not disqualify himself under the Code of Conduct or 28 U.S.C. §455(a) as in effect since 1974. On the occasions when a litigant or the press raised the issue of his failure to recuse, Justice Scalia expressed disbelief that anyone rationally believes a Supreme Court justice “can be bought so cheap” and diminished the seriousness of the questions with an analogy to calling a tennis player for “foot-faults.” Because the Supreme Court historically has only taken action on ethical matters with unanimity, Justice Scalia’s force of personality and ability to withhold a unanimous vote appears to have held the Chief Justice and other members of the Supreme Court at bay and kept them from enforcing or revisiting the ethical standards needed “to maintain the public’s trust” in the judiciary.
As Justice Scalia himself often expressed it, we need to “get over it” and move on with improving the administration of justice. The 5-4 Heller decision must definitely be asterisked because the deciding justice’s “impartiality might reasonably be questioned.” But that does not mean it is likely to be overturned. We can, however, learn from this and other cases where “impartiality might reasonably be questioned” that the Judicial Code of Conduct and 28 U.S.C. §455(a) must apply to Supreme Court justices without allowing a “duty to sit” to cause the Code to revert to the subjective standard that applied before 1974. And meaningful and enforceable disclosure standards can be adopted to ensure full disclosure of honoraria and gifts, including “personal hospitality” at properties or facilities owned by a host, as well as consideration of the identities of the hosts and intermediaries who arrange such trips in deciding whether to recuse in cases before the Supreme Court. And, lastly, in light of this extensive record of gifted trips, the pay of Supreme Court justices should be raised so there is less temptation for any justice to accept honoraria or gifts from persons with business that may come before the Court.
Keywords: Ethics, impartiality, code of conduct, hunting, Scalia, recusal, disqualify, Cheney, Heller, gun rights, personal hospitality, honoraria, gifts, duty to sit, Koch, Poindexter, Pickering, NRA, Hubertus, Republican, Allen Foster, Bush v. Gore, Ducks Unlimited, Safari Club, National Wild Turkey
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