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• (January 12, 2023, 01:18:11 AM)

[reimero]

As we all know all too well, Supreme Court justices answer to no one when it comes to recusing themselves from cases.  In one case, Justice Scalia recused himself from a case (the "under God" case) because he had spoken about the case even though it was still pending.  This is a clear, cut-and-dry case of when recusal is warranted.

In another case, he refused to recuse himself for private affiliation with a major shareholder in a company with a case on the docket, arguing that the personal and professional relationships were seperate and warranted distinction.  Scalia caught a lot of flack about not recusing himself on this one.

The polar opposite happened today, when the Supreme Court issued a ruling involving whether U.S. corporations could be compelled to turn over some documents to courts in other countries (in this case, it was Intel being compelled by AMD in a case brought in Germany, I believe.)  Anyway, Sandra Day O'Connor recused herself because she had previously held Intel stock in her portfolio (but does not currently, from what I inferred.)

So, as a matter of curiosity, at what point does a true conflict of interests exist?  In some cases, true disinterest and detachment can't really exist, and the justices have to remain as neutral as possible.  Was O'Connor right to recuse herself?  Or would she have been ok staying with the case?  (The decision was 7-1, BTW, so her vote wouldn't have been important.)

[Demosthenes]

I think O'Connor probably could have sat that case -- unless she was planning on having their stock again and recused herself to avoid appearances if it showed up in her portfolio a few weeks later.  Which is probably the case.

"Fat Tony" Scalia should definately have sat out on the Cheney case.  That was a conflict of interests if I ever saw one.  They've been personal friends and co-members of the "good ol' boys club" for years, and everyone knows it.

Uh oh, big surprise... he ruled in his buddy's favour? NO WAY!  

At that point, I don't even care about the merits of the case.  He shouldn't have kept himself involved.  I see this one as clear cut as the other.

However, I'm honestly surprised at his decision to recuse himself from the Newdow case.  

Either I clearly don't understand the process here, or Fat Tony is just really inconsistent.

[reimero]

I kind of understand it.  In the Nedrow case, he had previously addressed the issue in a public speech, giving his opinion on the matter.  Put another way, he issued an opinion about a pending case prior to hearing that case, which is a no-no.  Judicially speaking, failure to recuse himself from that case would have been even worse than not recusing himself from Halliburton.

Speaking about a pending case that you yourself may hear at a later point is a textbook example of when a justice must recuse himself.  There is absolutely no ambiguity there.

The Halliburton case was tougher: Cheney is not on Halliburton's board, and it is not uncommon for members of SCOTUS to spend time recreating with Washington power brokers.  This has been common practice for a substantial portion of our nation's history.  Furthermore, Cheney had no direct say on the Halliburton case and was not named in the suit.  In Scalia's eyes, the question was, should he recuse himself for going on vacation with a friend who is a stockholder with no leadership role in a company that has a case pending before SCOTUS?  In his eyes, it's the same as asking whether he should have recused himself from the Intel case because Cheney had Intel stock in his portfolio.  Because Cheney was not part of the case itself, Scalia saw no reason to recuse.

My personal feeling is that Scalia should have recused himself not because of conflict of interest, but because of the APPEARANCE of conflict of interest.  I'm sure that judicially speaking he's probably in the clear, but he undermined the court's stature by hearing the case.  In reality the conflict looked a heck of a lot worse than it was, but he made the Court look bad in the process.  And that's not good.

[biggyfred]

I think Supremos should be required to forgo their freedom of association, and severly limit their freedom of speech (which they already to do a point). They are the only branch not voted on, and with the added burden of applying justice in its strongest form in this country, there must be clear lines. This self-policing policy they have in place currently is crap. A fuckhead Supremo in the modern era like Scalia has been a long time comin.

I know that's harsh, but I think the level of trust their position demands requires extrordinary circumstances. Ginsburg is a heavy NOW proponent and I have issue with that, even as a NOW member myself.

Your assesement of Scalia is dead on, reimero. What he personally feels about the issue of conflict of issue is a moot point.

as a side note, I understand that asking for a limit on freedoms is a serious issue, not one to be taken lightly. But barring outside regulation, I don't see any othe equitable way. I would have no problem with an ombudsman group taking charge of it, but that's about as likely as ... well it's not likely.