Bench Memos

NRO’s home for judicial news and analysis.

Re: Scalia, Hamdan, and Recusal


Daveed Gartenstein-Ross has this Daily Standard essay explaining why Scalia need not recuse himself from the Hamdan case (to be argued tomorrow). In particular, the essay points out that Scalia’s recent remarks are consistent with the views that he has already expressed in two published opinions.

I think that this point explains why Scalia regarded it as appropriate to express his views on the issue. I don’t think, though, that this explains why he won’t have to recuse himself in Hamdan but did recuse himself two years ago in Newdow (the Pledge of Allegiance case). For his public comments on the legal question in Newdow were consistent with specific remarks he had set forth in his 1992 dissent in Lee v. Weisman:

The opinion manifests that the Court itself has not given careful consideration to its test of psychological coercion. For if it had, how could it observe, with no hint of concern or disapproval, that students stood for the Pledge of Allegiance, which immediately preceded Rabbi Gutterman’s invocation? The government can, of course, no more coerce political orthodoxy than religious orthodoxy. Moreover, since the Pledge of Allegiance has been revised since Barnette to include the phrase “under God,” recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction. If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court’s view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)? In Barnette, we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence – indeed, even to stand in respectful silence – when those who wished to recite it did so. Logically, that ought to be the next project for the Court’s bulldozer.

It may well be that Scalia would recuse himself from a case if he offered public comments that bore significantly on the issues and that went beyond what he had previously expressed in published opinions. But I believe that what explains his decision to recuse in Newdow — and what distinguishes that case from the situation in Hamdan — is that he had specifically commented on the lower-court ruling in that case.


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