Why Did Justice Scalia Decline to Participate in the "One Nation Under God" Case?
Recusal Decisions and When they Should, and Should Not, Be Required

One of the most intriguing cases on the Supreme Court's current docket has to be the so-called "one nation under God" case from California. In that case, the U.S. Court of Appeals for the Ninth Circuit ruled that the inclusion of those four words in the Pledge of Allegiance that public school elementary students recite every morning violates the Establishment Clause of the First Amendment.

And one of the most intriguing aspects of the "one nation under God" case has to be a recusal decision: Justice Antonin Scalia has decided not to participate in the matter, which is scheduled to be argued before the Court sometime next spring.

The plaintiff in the dispute is Michael Newdow -- a Sacramento physician and lawyer who brought the case on behalf of his elementary school-age daughter. Newdow requested that Scalia disqualify himself based on various public statements Scalia had made about the case after it had been decided in the lower courts.

The prevailing speculation is that Justice Scalia removed himself from the case in response to this request -- and the public statements to which it referred -- rather than for some other reason. No one knows for sure exactly why Justice Scalia decided that, in good conscience, he had to recuse himself; Justices who disqualify themselves don't have to explain their reasons publicly, and they rarely do. (It is more common, though still not by any means frequent, for Justices to write opinions explaining why they declined to recuse themselves in cases where some people might have expected recusal.)

If the public statements to which Newdow pointed were indeed the reasons for Justice Scalia's decision, I think the episode reveals some problems with the way recusal works.

The Public Statements by Scalia that Prompted Newdow's Request

Justice Scalia gave a talk earlier this year at an outdoor Religious Freedom Day ceremony sponsored by the Knights of Columbus. The Knights of Columbus is one of the organizations that lobbied to include the words "one nation under God" in the Pledge in the 1950s; the original pledge did not contain it.

According to press accounts, in his talk to the Knights of Columbus, Justice Scalia adverted to the lower court rulings in the Newdow dispute twice -- both in his prepared remarks and in response to a protestor in the audience.

First, Scalia mentioned prior rulings by his own Court indicating that government could not favor any religious sect or religion over non-religion. He observed that such rulings were "contrary to our whole tradition, [and] to 'in God We Trust' on the coins," and said that these rulings had created inconsistencies that lent "some plausible support" to the lower court rulings in Newdow.

Second, when Scalia saw a protest sign in the crowd, he remarked: "The sign back there which says, 'Get religion out of government,' can be imposed on the whole country. . . . I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance. That could be democratically done." Scalia thus arguably implied that the elimination of the "under God" phrase could not be accomplished by any Court -- even his own.

The "Soft" Statutory Standard for Recusal

Do these public remarks, and the attitude that they betray, warrant recusal? I have my doubts.

The standard for recusal is what we call in the law a "soft" one, and that is a big part of the problem. A federal statute provides that "[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

This standard, like many in the law, focuses not on the actual presence of wrongdoing -- in this case "bias" -- but rather the appearance of wrongdoing or impropriety. The statute asks not whether the judge in question will in fact be fair, but rather whether "reasonable" people will think he can be fair. (The American Bar Association's Model Code of Judicial Conduct also employs an objective "reasonable person" approach.)

Exactly how do we apply this "reasonable person" standard? The Supreme Court has made at least one thing clear - we should assume that reasonable people are somewhat skeptical. Even though judges are rarely biased in fact, "people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges."

For that reason, as one Court of Appeals has noted, "it is essential to hold in mind that these outside observers are less inclined to credit judges' impartiality and mental discipline than the judiciary itself would be."

The "Reasonable" Person of Recusal: Skeptical, But How Ignorant?

Fair enough - the outside reasonable observer need not be pollyanna-ish. But the real question is how sophisticated we can assume "reasonable" people are.

Lower courts have said that the focus should be on how "reasonable, well-informed observers of the judicial system would react." But that leads us to a few crucial questions: how "informed" is "well-informed?" And, how "observant" are "observers?"

Any remotely well-informed observer of the judicial system would know that judges and Justices do not come to each case before them with absolutely no idea of their views on the merits before they read the briefs. As Justice Scalia himself wrote in his opinion for the Court in Republican Party of Minnesota v. White, "a judge's lack of predisposition regarding the relevant legal issues in a case has never been thought of as a necessary component of equal justice, and with good reason. . . [because] it is virtually impossible to find a judge who does not have preconceptions about the law."

Technically, the Justice was talking about why the Court held that Minnesota's constraints on the speech of candidates for judicial election violated the First Amendment. But his point also applies in the recusal context: Judges are not blank slates.

Nor would we want them to be. As Justice Scalia went on to observe in the Minnesota case, if a judge had no tentative views or intuitions about the legal merits of a dispute before him, that "would indicate that the judge had not thought much about the law before joining the bench."

Chief Justice Rehnquist has similarly observed that to exclude all judges who have formed views about the legal issues underlying a dispute before the case has reached them would leave the courts only to those "who have proved their lack of qualification."

Any remotely well-informed observer also would know that speeches aren't the only outlet through which a judge might indicate his views about an area of law, and that we don't ordinarily believe that statements made in some of these other media should disqualify jurists. For example, many judges and Justices write law review articles, author books, teach law school classes, and so on. Such activities are encouraged by the profession, but it is hard to imagine that a careful reader/listener in these settings could not detect a jurist's views about many important legal issues of the past and present.

Indeed, judges and Justices most often muse about legal questions not directly before them in written judicial opinions themselves. Most of what is published in the United States Reports (where the Supreme Court's decisions appear) or the Federal Reporter Series (a compilation of federal Court of Appeals rulings) consists of what lawyers call "dicta" - statements not absolutely necessary to resolve the case at hand but which help provide some guidance going forward to litigants, attorneys, and lower court judges.

Take Justice Scalia himself, for example. Someone might well think his public Newdow remarks to the Knights of Columbus (or his recent public mocking of the Texas sodomy-case decided last Term) were intemperate. But these comments were hardly more intemperate than many in Scalia's published judicial opinions - majority opinions, concurrences and dissents.

The truth is that Scalia's judicial opinions are often far more sweeping, far more dismissive, and far more harsh in their treatment of legal theories, contentions and cases - including fact-patterns not yet before the Court -- than any of his extra-judicial public statements have been. And yet no one in the world thinks that simply because a Justice in a published opinion has made clear in passing, say, that he does not agree with an earlier ruling and would overrule it when given a chance, that he is "biased" against that ruling -- in the sense that he cannot participate in a case that comes up in which the continued vitality of that ruling is squarely presented. Having opinions about the law is very different from being biased in a particular case.

In sum, we apparently don't assume that the "well-informed" and "skeptical" observer has read very many opinions; if we did, we would be requiring a lot more recusals than we actually see.

Thus, there is an odd anomaly: We seem to treat the recusal standard differently when a Justice's potentially "biased" remarks appear on the CBS Evening News, than when they are excerpted from the U.S Reports by Linda Greenhouse (who covers the Court) in the New York Times.

What Should Be Considered to Count as "The Appearance of Bias"?

Does any of this mean that there is nothing wrong with a judge signaling to everyone that he has made up his mind, and is not willing to reconsider? Of course not.

A judge who told -- or created the impression to -- the world there is no point in filing briefs and making arguments in a case, because he already and absolutely knew what result was right would, I think, create an appearance of partiality. But the key question centers on a willingness to be dissuaded of one's tentative view.

There is a difference between an open mind and an empty mind, and impartiality requires only the former. All that we should ask of a judge -- be it in a speech, a law review article, or in a published opinion -- is that he do nothing to undermine the presumption that he is open to revisiting his own views if there are new or better-packaged arguments than he has seen in the past. If a judge satisfies this standard, then, in my view, he is not acting in a closed-minded and biased way, and there is thus no reason for him to recuse himself.

In sum, Justice Scalia's remarks shouldn't necessarily warrant recusal - because nothing he said or did indicated an unwillingness to reconsider his own leanings.

The Dangers of Judges' Overrecusing Themselves

Even if I am right on this point, however, some people may think that it does not seem so bad if judges over-recuse themselves - that is, recuse themselves scrupulously in any case in which they fear even the hint of a possibility of an appearance of bias.

However, I see a few potential downsides to "overrecusal." To begin with, cases like Newdow end up being decided without all the relevant voices participating.

I sincerely doubt that Justice Scalia's views about the words "one nation under God" are any more "fixed" than are those of many of the other Justices (and I think many knowledgeable Court observers would be able to predict the votes of at least 3 or 4 of the Justices in this case). And yet Scalia's voice and vote alone will be absent.

Moreover, at the Supreme Court in particular, where we have no mechanism for replacing Justices who recuse themselves, we are left with an even number of Justices- 8. And that means the votes may end up in a dissatisfying 4-4 tie (in which case the Ninth Circuit ruling would get affirmed by an evenly-divided Court.)

A Key Disadvantage of Strict Recusal Standards: An Information Drought

But moving beyond a particular case, if recusal standards are unreasonably strict, then judges will stop doing the things that might trigger recusal. Judges will make fewer speeches, write fewer books and articles, and teach fewer classes.

I think that would be a bad thing, because these media provide information to litigants and lawyers and scholars concerning the kinds of arguments and considerations that are really motivating judges to decide as they do. As a litigant or a scholar, I want more - not less - information about the tentative views of judges on key legal questions, so that I may address my arguments and scholarship to overcoming and counteracting those intuitions I think are misguided.

Nor are lawyers and scholars the only ones who need and deserve more - rather than less - information. So too does the public, and so too does Congress when it considers judicial nominees.

In his 1986 Supreme Court confirmation hearings before the U.S. Senate, then-judge Scalia was asked by Senator Thurmond for his views about Marbury v. Madison - the 1803 decision by the Court widely credited for establishing the institution of judicial review ( the power of the courts to decline to enforce statutes they find inconsistent with the Constitution). Justice Scalia answered: "I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison."

Last week, when Janice Rogers Brown, the California Supreme Court Justice who has been nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit, was asked by a Senator whether she thought the infamous 1905 decision in Lochner v. New York -- where the Court invalidated a New York law regulating the maximum number of hours bakers could work on the ground that the law violated the "freedom of contract" protected by the Fourteenth Amendment -- was correct, she balked at giving a straight answer. That may have been because she -like Justice Scalia in 1986 - thought that to give an answer would be to prejudge a future case that might arise.

But these two nominees' hesitation, I think, is a shame. Like a jurist's take on the meaning of Marbury, a nominee's straightforward views about whether Lochner's result was right or wrong could go a fair way in educating a Senator about the kind of federal judge she is likely to be if confirmed.

The key distinction in the confirmation setting -- just like the key distinction concerning recusal and Justice Scalia's Newdow remarks -- is that between a prediction, one's tentative views, and a promise, a solid unshakable commitment to resolve a case in a given way, no matter what the new arguments or nuances may be. The former is perfectly permissible, indeed desirable, information to seek and provide. The latter is not.

But in both the recusal and the confirmation settings, the failure to draw this distinction leads to a reduction in information -- a reduction that may be detrimental to the system. For this reason, we should think carefully before asking judges to either suppress their true views and feelings, or pay the price of recusal if they voice them.