On March 28, U.S. Supreme Court Justice Antonin Scalia took his seat at
the nation’s highest court to hear Hamdan v. Rumsfeld. His task, along
with the other justices, was to determine whether Salim Hamdan, a
captured enemy combatant, should be afforded a fair and basic trial.
The court would hear, for the first time, arguments from both sides
over whether Hamdan should be afforded basic due process rights as a
war-time detainee – an outcome that would establish a dramatic
precedent in American law governing times of war.
The lawyers for Hamdan knew they were facing an uphill battle. But the
problem wasn’t in their argument. It was in persuading a justice who
had already made up his mind about the issue.
Earlier that month, prior to hearing arguments in Hamdan, Scalia had told a crowd in Switzerland that the notion of war detainees being afforded a jury trial in civil courts was “crazy.” Scalia added that he was “astounded” at the “hypocritical” reaction in Europe over the role of the U.S. prison camp at Guantanamo Bay, Cuba. After all, Scalia insisted, “war is war.”
Meanwhile in America, more and more legal experts have become
frustrated at the 70-year-old justice’s habit of making satirical
remarks on pending cases when outside the courtroom. For example, legal
ethics expert Stephen Gillers concluded that “a legitimate question
could be asked about whether he is compromising the credibility of the
court.” Responding to Scalia’s remarks about war detainees, a group of
five retired generals and admirals issued a letter to the Supreme Court
insisting that Scalia recuse himself from ruling in Hamdan. They wrote:
“In a case that is fundamentally about fair process, it is especially
important that this court’s own process be perceived to be fair.”
Yet Scalia seems to show little regard for such criticisms over
judicial ethics. Despite the Judicial Code’s express rule that justices
disqualify themselves from cases where their impartiality is reasonably
in question, Scalia refused to give up his seat in the Hamdan case.
Consequently, the court’s judicial integrity was undermined.
More importantly, however, Scalia’s most recent antic chips away at a
fundamental premise of the American judicial system – that judges must
always be fair, neutral, and impartial arbiters in pursuit of justice.
The American judicial system relies on judges who are impartial. They
are expected to make decisions based on the evidence and arguments
presented to them, rather than on prejudged notions about a case. The
Judicial Code, which leaves the ultimate decision of recusal up to the
individual justice, states that a justice “shall” disqualify himself or
herself “in any proceeding in which his impartiality might reasonably
be questioned.” And the Code of Conduct for United States Judges
provides: “A judge should avoid public comment on the merits of a
pending or impending action.” The Supreme Court itself has recognized
how important these rules are in protecting the legitimacy of the
judicial system. As recently as 1994 the court ruled that recusal is
necessary whenever “impartiality might reasonably be questioned.”
However, Scalia’s track record suggests that he doesn’t care about the
perception of the court or the legitimacy of the system. Throughout the
latter part of his career, Scalia’s behavior has at times run counter
to the very notion of justice.
In January 2003, Scalia made headlines when he accompanied Vice
President Dick Cheney on a duck-hunting trip to a private resort. This
vacation among friends came just weeks after the Supreme Court agreed
to hear a case in which Cheney was a primary party. When questioned
about the appropriateness of the timing, Scalia, having a clear grasp
of the rules governing his ethics, remarked, “I do not think my
impartiality could reasonably be questioned.”
Countless court watchers and legal-ethics experts agreed, however, that
the act of accepting a trip to vacation with a friend who will soon be
asking you to rule in his favor calls into question a justice’s
impartiality. While justices can certainly maintain friendships, a
noted ethics expert stressed that judges should be very careful to
“show a proper respect for maintaining the public’s confidence in the
integrity of the process.”
Yet that is precisely where Scalia runs into trouble. Rather than
exercising judicial temperament, Scalia seems to enjoy pushing the
limits of judicial integrity. His concerns seem to be more focused on
himself and his quick wit than on notions of fairness, justice, and
impartiality – hallmarks of the American judicial system. For example,
in a misguided attempt to communicate his view of the First Amendment’s
religion clauses in November 2004, Scalia pointed out that separation
of church and state did nothing to prevent the Holocaust.
With widespread attacks against the judiciary coming from all fronts,
American judges, especially Supreme Court justices, must exercise
judicial temperance more than ever. America’s founders envisioned, and
the American people expect, an independent judiciary seeking true
justice. Indeed, the entire historical façade of the U.S. Supreme Court
intentionally speaks to the notion of blind justice. Judges are dressed
in black to signify their impartiality; the court’s internal operations
are kept secret in an attempt to guard against influence; and federal
judges are given life terms to protect them from power and influence.
But these veils do little to get in the way of Scalia’s apparent need
to be in the limelight. When asked by a reporter if he had to deal with
much criticism for his conservative Roman Catholic beliefs, Scalia
responded with a Sicilian hand gesture that he says means, “I couldn’t
care less.” One wonders if Scalia, who is entrusted with meting out
justice, would respond with the same gesture if asked about the
importance of judicial integrity and the reputation of the judicial
system.
Constitutional attorney and author John W. Whitehead is founder and
president of The Rutherford Institute. He can be contacted at (johnw@rutherford.org).
