No. It was a bit of hyperbole on my part. My feeling was that Scalia was essentially making a public pronouncement about how he would rule, when the Pledge issue is eventually presented before his court.
Not a “ruling,” but good reason for the judge to recuse him or herself. Also, it might be viewed as an advisory opinion - the SCOTUS (federal courts generally, in fact) does not issue advisory opinions. An advisory opinion is one issued before the matter is before the court. There is a “case or controversy” requirement.
On a personal note, I met CJ Warren Berger when I was in high school - when I was a congressional intern. This was a few months after Reagan was shot. Berger would not discuss the insanity defense AT ALL. He said, basically, no SC judge should ever comment on any issue which might come before the court.
No, but that’s irrelevant. A judge doesn’t stop being a judge when he takes his robe off; he has to appear impartial about cases that might come before his court even in nonjudicial settings.
OTOH, I think to demand Scalia’s recusal in this case is to make a fetish of the rules. If a judge has spoken or written about how, say, he thinks Roe v. Wade is an abysmal example of constitutional law that should be overturned, it’s no great mystery as to how he will rule on cases asserting a constitutional right to abortion. I don’t think anyone here is suggesting that such a judge would have to recuse himself when such a case did arrive before his court. And I fail to see why the mere mention of the name of such a case currently wending its way through the appeals process in thos remarks should change that analysis.
Um, SC “justice.”
Oh, and I’m not as sure about recusal as I may sound. I think it is borderline. If I’m arguing for the side that wants to defend separation of church and state, I’m pushing for Scalia to recuse himself.
I do not like thee, Justice Scalia. He is the meanest looking SOB. He looks like he would stick your head in the blender if you pissed him off, and he’s already about half pissed off. Rehnquist, on the other hand, looks like he would have someone stick your head in while he took dispassionate notes as to the process and the results.
And, the way I figure, he probably knows the law on this stuff. But what his actions indicate to me is, he doesn’t care. Most likely, because he doesn’t have to.
But all that said, it clearly reflects poorly on his (ahem) judgement. He’s not running for office, he doesn’t need to curry favor. But he has to know that there are people like Minty and DCH who are going to say “Hey, that ain’t right! You’re not supposed to do that sort of thing.”
So why doesn’t he care? Shouldn’t he?
Don’t you think there is a big difference between commenting on something before you are a justice versus once you wear the robes?
Sure, nobody is saying that having opinions precludes one from sitting on the bench. But, once you are on the bench your right to express your opinions is seriously curtailed by the rules of ethics, tradition, and the prohibition against advisory opinions.
To use your example, if a sitting justice wrote that Roe should be curtailed, that’s bad form.
Lets nail this thing right now. What exactly in the OP article leads you to believe that Justice Scalia has made a ruling on the Anti-Pledge case? I am not seeing what you are seeing.
Heres the link again:
http://www.cnn.com/2003/LAW/01/13/scalia.ap/index.html
From what I can gather from this heavily edited news article, Justice Scalia thinks that the separation of church and state in the constitution has been misinterpreted by lower and supreme courts and that there is “plausible support” for that conclusion. I dont see why that would show bias or partiality when what you have to contend with is the support he is talking about, not Justice Scalia himself.
As for your question “is this case properly before the courts, or is this a legislative matter?” That is a legal issue which counsellors must present before the Supreme court and answer to. In effect, you are “convincing” the court that your case needs to be heard by the court and whether or not Scalia believes it to be a legislative matter, he must listen to the arguements impartially.
Altho he said he believes such decisions should be made legislatively, not by courts, he never said he will not listen to arguements nor rule impartially should the court decide that it was presented properly.
Beagle: Maybe. But many judges do continue to publish once they’re on the bench (Posner on the 7th Circuit is the Stephen King of jurists in terms of quantity). I’m not sure a rule that requires judges to only publish mealy-mouthed pieces that never assert a conclusion is a good rule.
SuaSponte
Could you address how this particular public statement made by Scalia is any different from other opinions he and other judges have openly stated or included in books they’ve written? Is the premise of neutral court ever really valid?
IzzyR
How is the pledge of allegiance issue not linked to the Bill of Rights?
I can’t find the transcript, but I did come across this:
So it seems like he should have known better.
No one is suggesting that Scalia has “made a ruling.” What Sua is asserting is that Scalia has pre-judged the Pledge case such that he will not give fair consideration to the anti-Pledge side when the case comes before his court for a ruling.
The relevant text from the article follows:
Again, I’m not entirely swayed by the pro-recusal argument, but you’re not addressing what Sua is actually saying.
The Seven Canons of Ethics are:
*A judge should uphold the integrity and independence of the judiciary.
*A judge should avoid impropriety and the appearance of impropriety in all activities.
*A judge should perform the duties of the office impartially and diligently.
***A judge may engage in extra-judicial activities to improve the law, the legal system and the administration of justice. **
*A judge should regulate extra-judicial activities to minimize the risk of conflict with judicial duties.
*A judge should regularly file reports of compensation received for law-related and extra-judicial activities; and
*A judge should refrain from political activity.
To the fouth canon of ethic, Supreme Court Justice Anthony Kennedy states,
JUSTICE KENNEDY: Judges exercise power as part of the governmental apparatus. And so, it is necessary for judges – with their professional experience and their commitment to neutrality – to engage in those discussions and activities which will improve the law.
In the United States, we have specific rulings in our canons which not only permit but encourage judges to teach, to engage in activities to improve the legal system…
When U.S. judges look for allies, we often go to our friends and former colleagues… We do this openly, explaining in a public letter what our judicial concerns are. We cannot be so removed from the world that we can or should ignore issues and legislation and policies that affect the judiciary, and I think it’s quite appropriate for a judge to engage in such activities and discussions.
A judge must be very careful though, to make clear that the judge is doing this as an extra-judicial activity, and will not engage in such discussions on the bench or put it in his or her opinions or writings.
*
Bah. In innumerable instances, phoniness is both proper and necessary. Remember that annoying uncle of yours? 
Seriously, of course just about every Justice already has at least a preliminary idea about how they would rule if and when the Pledge case gets before them. How could they not?
But there are three very good reasons why they are supposed to refrain from comment.
First, the case is pending before a lower Federal court, which is supposed to make its ruling based upon how the law stands now, not on how the Supremes may address the issue. A public statement by one of their ‘bosses’ is likely to affect their deliberations.
Second, Justices do change their minds upon hearing the actual facts and law of a particular case. Scalia has made it harder to do that, as he will now be contradicting himself. Normal human egotism makes it hard enough to change one’s mind. It is much harder to publicly admit one was wrong.
Third, image is vital to the workings of the courts. The courts have no army to enforce their rulings; they must rely on the two political branches to do so. If the courts lose the public respect, they have nothing to fall back on. So even if you ain’t impartial in your heart, act impartial.
Sua
X, you conveniently left off the details of Canon 4: “A judge, subject to the proper performance of judicial duties, may engage in … law-related activities, if in doing so the judge does not cast reasonable doubt on the capacity to decide impartially any issue that may come before the judge.”
That’s in both the Judicial Conference text posted by AQA and in my post of the ABA Model Rules. It would do you good to also read the Official Comments to the ABA Model rules, as they are enormously influential in their interpretation.
Pardon me. a bit of hyperbole on my part.
BTW, heres the link to the Anthony Kennedy cite: http://usinfo.state.gov/journals/itdhr/0999/ijde/kennedy.htm
However, I still do not see where any of Scalia’s statements show that he will not give fair consideration to the anti-pledge case. Once the counsellor has addressed the “plausible support” for a legislative solution, then the matter is clearly in the hands of the supreme court and then Scalia can address the issues brought forth then.
You know, all this brouhaha is brought about based upon the interpretations of the statements of Justice Scalia by a CNN news reporter which were then edited and cut by a CNN editor to fit an internet news cite. We’re not even getting this third hand.
I’m not sure how you are using the term “linked”. It is related in the sense that some people think it is included. But to someone who thinks it is not, it becomes subject to legislative and popular opinion, much like any other issue that is not part of the BoR.
This has absolutely no connection to anything being discussed here. Scalia was saying that his personal opinion about the morality of capital punishment would not affect how he would rule about its legality. Nothing to do with the issue here.
Well if the USSC is going to overturn it anyway, then no big deal. But of course, Scalia is just one vote and may end up on the losing end. If I was an appeals court judge I would take my chances. But you are suggesting that a lower court will so fear the shame of being overruled that they won’t risk being contradicted. I don’t agree, but your point has some validity.
Also a good point.
The basic gist here is that there are some ways to envision having an impact, as you note. But carrying it to the extreme would require that no justice ever comment on anything, pending or not. Or even at statements made before assuming the position, as others have pointed out. So you draw the line at pending cases. I draw it closer.
But again, I can see your position.
This I don’t accept at all. It is a bogus impartiality. The people should learn to live with inherent human weakness. Personally, I think a lot of unnecessary cynicism is bred by setting unrealistically high expectations, and corruption by unrealistically high standards.
In all probability, Scalia would just bring this all up with the rest of the Supreme Court Justices in committee, discuss among themselves and rule on whether or not Scalia can be impartial to the Anti-God Pledge of allegiance (its not really the anti-Pledge now that i think about it) once they decide Justice Scalia can be impartial, he can sit with them on the case. If not, then Scalia can recuse himself.
Good list, Sua, but if I could add an additional item:
Fourth: A judge’s public statement prejudging a legal dispute discourages the parties from seeking judicial review.
Lord knows there are three or four judges who would have preferred to vote the other way on Brown v. Board. Had they made their opinions known ahead of time, the plaintiffs may have chosen not to pursue their claims at all.
IMO, the difference is reference to a particular case. It is a very different thing to say “I think the current trend in court decisions on the separation of church and state is bullshit,” and “I think the current decision in the anti-Pledge case is bullshit,” particularly where it is possible that that case will come before you.
The reason there are individual cases is that our system is based on the concept of general laws and principles applied to the facts of the particular case.
And the facts are crucial. The history of the Supreme Court is chock full of instances where conservative justices voted “liberal” and liberal ones “conservative,” based on the facts of the case. As one example, in the early 70s, the Supreme Court considered the constitutionality of state death penalty laws. Justice Byron White was considered a slam dunk to uphold the laws, given his record in criminal law cases. But White looked at the facts and determined that the death penalty was applied so randomly and rarely that it did not serve the states’ interest in deterrence. As no state interest was being effectively served, White determined the death penalty as it stood unconstitutional.*
Sua
*Ironically, White’s preferred solution would have been mandatory death sentences.
OK, then, he believes that the government can be involved in religion without giving more of a leg up to one religion than to another, or to theism over atheism.
OK, so he’s an idiot. Whatever.