Bench Memos

Re: Idiotic Claims for Scalia’s Recusal

Like Ed Whelan, I find it appalling–but sadly, not very surprising–that victims of Anti-Scalia Derangement Syndrome have seized on the comments Justice Scalia made a week ago at Princeton to argue that he should recuse himself in the DOMA and Prop 8 cases.  David Dow, Bill Press, and Michael Russnow are either too ill-educated to recognize the form of a reductio ad absurdum argument–which, as I explained last week, is what Scalia employed in the Romer and Lawrence cases and defended in answer to a Princeton student’s question–or they would rather vent their spleens than stop and think.

Let me add a little more context to what Scalia said in Princeton’s Richardson Auditorium last Monday, where I was present to hear him.  Yes, as Ed points out, he was speaking of opinions he published years ago, not about the pending same-sex marriage cases, and so there can be no possible basis for his recusal in the pending cases.  Moreover, when Scalia took the very last question, from someone who asked him to offer an interpretation of the Religious Freedom Restoration Act of 1993, he remarked that the Court had never yet had to interpret that statute, that he was aware of a number of active federal lawsuits involving its application (plainly he was alluding to the many suits against the HHS contraception mandate), and that he could therefore not answer the question.

Clearly, Justice Scalia knows exactly what it is permissible for him to discuss, under the standards of recusal ethics, and what it is not permissible for him to discuss.  As for his excitable enemies, it is equally plain how little they know.

UPDATE: Ed Whelan e-mails to remind me of a RFRA case the Court has decided that Justice Scalia did not recall in his answer to a question last week–and that I forgot as well: Gonzales v. O Centro Espirita Beneficenti Uniao do Vegetal, decided in 2006.  Presumably Scalia could have discussed that case, in which Chief Justice Roberts wrote for an 8-0 unanimous Court.  But with the HHS mandate cases on the horizon, he was wise not to answer the question posed to him, which was fairly closely keyed to the characteristics of those cases.  In answering the earlier question he did take, about his own published views in Romer and Lawrence, he was in no way discussing the quite distinct issues at stake in the DOMA and Prop 8 cases, nor prejudging the merits of those cases.


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