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For Scalia, Spurning Calls for Recusal Is Labor of Love

Justice Scalia takes pleasure in rebuffing calls for recusal, as seen by his stinging 2004 memo responding to those who asked him to sit out a suit involving Vice President Dick Cheney, with whom Scalia had recently gone hunting at the time.

In the end, Scalia heard the case, and seven (other) justices decided to send the issue back to the lower court. (Scalia joined Justice Thomas’ opinion that went a step further and called the lawsuit “unwarranted” to begin with.)

On the other hand, Scalia was part of the single-vote majority in Wal-Mart v. Dukes, a 5-4 decision that negated the class status of female employees suing the company for backpay. Scalia was asked to recuse since his son Eugene is a partner at Gibson Dunn, the firm that represented Wal-Mart before the high court. This time, though, there was no self-authored 21-page memo in his defense.

The Supreme Court does not require justices to explain the reasons for their recusals, and it’s clear why this opaque practice must end. While we do not assume Chief Justice Robert and his colleagues to be acting improperly on a regular basis, there is no reason for them to hide behind this antiquated practice that leave the media and members of the public guessing if and when a justice has a potential conflict of interest.

Fix the Court is calling on the chief justice to establish a formal recusal reporting procedure in which justices would submit the reason for their recusal to the court’s Public Information Office, which would then post the reason on the court’s website. And we’re calling on the court to make it easier for attorneys and members of the public to file a request for recusal in any case.

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