WASHINGTON — Invoking history, law and the upper social strata of Washington, Justice Antonin Scalia said on Thursday 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, Scalia said it was not improper that he hunted ducks in Louisiana with Cheney in December, just three weeks after the court agreed to consider the case.
Scalia not only justified his participation in the case, he 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 as if friendship were far more important than any 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."
Scalia argued forcefully in his memorandum that friendship is only a basis for recusal "where the personal fortune or the personal freedom of the friend is at issue," not a friend's actions on behalf of government. As a result, he wrote, he has no justification to step aside. A Supreme Court justice's decision on recusal is final and cannot be challenged.
The case before the Supreme Court that involves 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 Cheney. The club, alone, petitioned Scalia to step aside, arguing that his participation in the trip creates the appearance of favoritism undermining "the prestige and credibility of this court."
In his decision, Scalia also took issue with critics who would assume he could not rule impartially simply because Cheney accepted his invitation to hunt ducks and he accepted 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 Scalia serving on the case involving Cheney.
"If it is reasonable to think that a Supreme Court Justice can be bought so cheap," Scalia wrote, "the Nation is in deeper trouble than I had imagined."