Justice Antonin ScaliaOn 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).

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