Bench Memos

Idiotic Claims for Scalia’s Recusal in Marriage Cases

In another bout of ASDS (Anti-Scalia Derangement Syndrome), some folks on the Left are insisting that Justice Scalia should recuse himself from the marriage cases—and even be impeached—because of his recent Princeton remarks in which, in response to a question, he explained the reasoning of his 2003 dissent in Lawrence v. Texas.

I was surprised last week to run across this article entitled “Should Scalia step aside in gay marriage cases?” I was pleased, though, to discover that Alison Frankel, the author of the article, fairly presented the right answer: “I put the question to six prominent Supreme Court litigators. They were unanimous: There’s no reason whatsoever for Scalia to recuse himself from the gay marriage cases the court has agreed to review.” As law professor Alan Morrison states, “You can’t recuse somebody because they’ve expressed prior views in judicial opinions.” It follows, as Morrison recognizes, that a justice isn’t obligated to recuse himself for explaining the views that he has expressed in previous opinions.

That simple point hasn’t stopped the crazies. Law professor David R. Dow, whose poor reading comprehension evidently matches his poor reasoning ability, falsely claims that Scalia “said homosexuality is immoral in the same way that murder is immoral.” The article that Dow links to doesn’t support his claim. As Matt Franck explained more fully last week, Scalia’s point in his dissent, which he spelled out at Princeton, “was that if the operative premise of the Court’s reasoning is that the moral conviction of the community is an insufficient ground for legislation, there is no constitutional basis for a great many laws we all agree are valid, and that have no other basis than the community’s moral conviction.”

Michael Russnow and Bill Press rest their recusal claims on falsehoods akin to Dow’s. (As is often the case, I’ve relied on the indispensable How Appealing blog in learning of these inanities.)


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