ASHINGTON,
March 18 — Invoking history, law and the upper social strata of Washington,
Justice Antonin Scalia said on Thursday that he would not remove himself
from a case before the Supreme Court involving his good friend, Vice
President Dick Cheney.
In a 21-page memorandum, a rare public explanation and rarer still for
describing what it means to have friends in the highest of places, Justice
Scalia said it was not improper that he hunted ducks in Louisiana with Mr.
Cheney in January, just three weeks after the court agreed to consider the
case.
Justice Scalia not only justified his participation in the case, he also
disclosed new details of the trip. "I never hunted in the same blind with
the vice president," he wrote.
He also recounted other cases in which presidents and justices socialized
without concerns about appearance. Citing historical accounts, he wrote of a
time when Justice Harlan F. Stone "tossed around a medicine ball with
members of the Hoover administration mornings outside the White House," and
when Chief Justice Fred M. Vinson "played poker with President Truman." And
who could forget those days when Justice John Marshall Harlan and his wife
sang hymns at the White House with President Rutherford B. Hayes or when
Justice Byron R. White skied in Colorado with Attorney General Robert F.
Kennedy?
In a more contemporary glimpse into the coziness of Washington's elite,
Justice Scalia wrote, "A rule that required members of this court to remove
themselves from cases in which the official actions of friends were at issue
would be utterly disabling." Many justices, he said, were appointed to the
court precisely because they were friends with the president or other senior
officials.
Justice Scalia argued forcefully that friendship is a basis for recusal
only "where the personal fortune or the personal freedom of the friend is at
issue," not a friend's actions on behalf of the government. As a result, he
wrote, he had no justification to step aside. A Supreme Court justice's
decision on recusal is final and cannot be challenged.
The case before the court that involves Mr. Cheney is the effort by the
Sierra Club to force him to provide information about the energy task force
he led as the Bush administration, in its early months, was formulating
environmental policy. After an appeals court ruled in favor of the Sierra
Club and another plaintiff, Judicial Watch, a government watchdog group, the
administration appealed to the Supreme Court on behalf of Mr. Cheney. The
club, alone, petitioned Justice Scalia to step aside, arguing that his
participation in the Louisiana trip created the appearance of favoritism
undermining "the prestige and credibility of this court."
But in an obvious jab at the Sierra Club's reasoning that social contact
by justices compromises their objectivity, Justice Scalia noted almost
sarcastically that two days before the club opposed Mr. Cheney's appeal to
the court, the club's lead lawyer in this case, Alan B. Morrison, a friend
of Justice Scalia for nearly 30 years, invited him to address his Stanford
Law School class.
"It was an open invitation," Mr. Morrison said, acknowledging Justice
Scalia's reference as a not-so-subtle reminder that friendships transcend
even political lines.
In his decision, Justice Scalia also took issue with critics who would
assume he could not rule impartially simply because Mr. Cheney accepted his
invitation to hunt ducks and he accepted Mr. Cheney's invitation to fly to
Louisiana on a government jet. An account of the trip was published in The
Daily Review in Morgan City, La., in early January, and The Los Angeles
Times subsequently reported on the potential conflict of Justice Scalia
serving on the case involving Mr. Cheney.
"If it is reasonable to think that a Supreme Court justice can be bought
so cheap," Justice Scalia wrote, "the nation is in deeper trouble than I had
imagined."
David Bookbinder, the Washington legal director for the Sierra Club,
criticized Justice Scalia's decision, calling it "a splendid example of how
secrecy corrodes public trust and the integrity of government."
"If Justice Scalia believes the facts as he laid them out," Mr.
Bookbinder added, "he should have released them two months ago before the
public started to ask questions."
The decision also drew strong criticism from Senator Patrick J. Leahy of
Vermont, the ranking Democrat on the Judiciary Committee.
"There is no question that the very fact of this episode had raised
appearance and impartiality issues," Mr. Leahy said. "To many, the very fact
that this vacation weekend happened while this decision was pending is
enough to make the situation quack like a duck."
Decisions on recusals by Supreme Court justices are not unusual, but most
are voluntary, rather than in response to a petition from a litigant. And
most come without comment, let alone one as long as Justice Scalia's.
In choosing to offer an expansive rationale, Justice Scalia provided
colorful details of the January duck hunting trip as well as a snapshot of a
friendship that began when he and Mr. Cheney both worked in the Ford
administration. Justice Scalia was an assistant attorney general and Mr.
Cheney was White House chief of staff.
The trip, he wrote, had been planned for the court's winter recess — and
long before the court agreed to hear the case involving Mr. Cheney. Mr.
Cheney accepted the invitation, noting that national security required him
to fly in a government jet, and he offered Justice Scalia the chance to ride
along if seats were available. They were, for Justice Scalia, for one of his
sons and a son-in-law.
In Louisiana, Justice Scalia said the hunting party numbered about 13,
including Mr. Cheney, his staff and security detail. They hunted over three
days in two boats and ate all their meals together.
"Sleeping was in rooms of two or three, except for the vice president,
who had his own quarters," Justice Scalia wrote. "Hunting was in two- or
three-man blinds. As it turned out, I never hunted in the same blind with
the vice president. Nor was I alone with him at any time during the trip,
except, perhaps, for instances so brief and unintentional that I would not
recall them — walking to or from a boat, perhaps, or going to or from
dinner."
"Of course," he added, "we said not a word about the present case."
He and his relatives stayed in Louisiana two days longer than Mr. Cheney,
Justice Scalia said, flying back to Washington on a commercial flight from
New Orleans.
He wrote: "Since we were not returning with him, we purchased (because
they were the least expensive) round-trip tickets that cost precisely what
we would have paid if we had gone both down and back on commercial flights.
"In other words, none of us saved a cent by flying on the vice
president's plane."