A Closer Look At The Case From Which Justice Scalia Has Refused To Recuse Himself:
The Momentous Stakes, and the Larger Political Context

Recently, and now famously, U.S. Supreme Court Justice Antonin Scalia refused to recuse himself in the lawsuit involving his friend and duck-hunting compatriot Vice President Dick Cheney.

Much attention has been focused on the merits of the recusal decision itself -- including acute FindLaw columns by Edward Lazarus and Michael Dorf. In this column, I will focus, instead, on the underlying lawsuit.

It is an extraordinary case -- in which the Vice-President contends that he is, in essence, beyond the reach of the law. It began as a set of rather pedestrian discovery matters in two consolidated civil lawsuits. Now, however, because of Cheney's stance, it could be a landmark Constitutional decision.

Justice Scalia obviously wants to be involved in this decision. Indeed, he seems to want this so much, that he is willing to give up any hope of attaining the Chief Justice spot on the Court, in the event of a retirement.

Given Scalia's prior writings in this area of law, he is very likely to vote in favor of Cheney. And that vote could be a tiebreaker on the Court.

Either way, that vote would likely fuel a fierce filibuster to kill Scalia's confirmation if he were, in the future, nominated to be Chief Justice. Moreover, because of that vote, Scalia might not even get that far: President Bush, if re-elected, might simply pass over Scalia for a less controversial choice.

This underlying dispute is similar to the clash between the Vice President and the General Accounting Office (GAO) over release of basic information about the work of the National Energy Policy Development Group, which I discussed in a previous column. Cheney successfully stonewalled the GAO requests, and as I noted in another column, the GAO sued and lost. The basic issue was Congress's power of oversight over the Executive Branch.

The case now before the Court is, similarly, a separation of powers case -- arising over the issue of Cheney's ability to keep the Group's meetings, and information about them, secret. The plaintiffs (Judicial Watch and the Sierra Club) claim that the Group failed to comply with the Federal Advisory Committee Act (FACA).

FACA requires that the Group's activities be open to the public, and that its records be made available -- if non-federal employees participated. And the plaintiffs believe that was the case here: They suspect that energy industry interests were so involved in the Group's work that they were, in effect, part of the Group.

Cheney denies this. He also claims it is unconstitutional to even require him to provide the discovery information the plaintiffs seek in the case -- answers to interrogatories, and copies of documents.

The Vice President is not claiming executive privilege (which enables the President to withhold information from Congress or the courts). But he still says he is entitled to resist this basic discovery.

It is striking that this dispute has made its way to the Supreme Court -- and so quickly. This happened because Cheney pushed it to the high Court by refusing to comply with lower court orders.

This case is being handled at the trial level by Judge Emmet Sullivan of the U.S. District Court for the District of Columbia -- a seasoned, highly respected jurist. Judge Sullivan was appointed by President Ronald Reagan to the Superior Court of the District of Columbia; by President George Bush to the D.C. Court of Appeals; and in 1994 by President Clinton to the federal bench. As this bipartisan support indicates, Judge Sullivan is no maverick.

There is no indication in the record that Judge Sullivan has been anything but fair in this case. Yet when he ruled against Cheney on the discovery issue, Cheney took the very unusual steps of appealing -- in the middle of an ongoing case -- first, to a three-judge panel of the U.S. Court of Appeals in the District of Columbia; then, when the panel said no, to the full Court of Appeals.

Rarely can any civil litigant appeal before a final ruling has been reached -- especially on a discovery question like this one. But when you seek to make new rules, as Cheney is doing, you don't play by the old rules.

The Court of Appeals divided along political lines. On the three-judge panel, Judges David Tatel, a Clinton appointee, and Harry Edwards, a Carter appointee, followed clear Circuit precedent -- the old rules -- to oppose Cheney's appeal. But Judge Raymond Randolph, appointed by G. H. W. Bush, dissented, urging that new rules be imposed. Upon review by the full circuit, Judge Randolph and two other conservative judges, Sentelle and Roberts, dissented -- again urging that Cheney benefit from new rules.

Finally, when the Court of Appeals said no, Cheney went to the U.S. Supreme Court. And, as Edward Lazarus has noted, while Cheney's petition was pending at the Supreme Court, "Scalia dined with Cheney (and Defense Secretary Donald Rumsfeld) at a posh spot out on Maryland's Eastern Shore."

What a difference a good meal may make. Later, the Court accepted review -- and Scalia refused to recuse himself.

Like the conservative D.C. Circuit judges who favored granting the appeal, conservative Solicitor General Ted Olson sees the Cheney case as a means to expand executive powers -- with Scalia's help.

Ironically, it was in a 1988 case involving Olson himself that Scalia most strikingly set out his thinking about executive powers. The case was Morrison v. Olson -- and Scalia alone dissented.

Alexia Morrison was appointed under the Independent Counsel statue to investigate whether Ted Olson had given false testimony to Congress. Before Olson was exonerated, he tried but failed to have the Independent Counsel law ruled unconstitutional. Scalia, in his dissent, saw the case as raising a broad issue of "[p]ower. The allocation of power among the Congress, the President, and the courts."

Scalia's colleagues followed the traditional separation of powers thinking expressed in Youngstown Sheet & Tube Co. v. Sawyer -- which embraces overlap, and allows noncompartmentalized governmental powers. As expressed by Justice Jackson, this view holds that "[w]hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

But Scalia embraced a far more formalistic view. In his dissent, he alone argued for a "clear constitutional prescription that the executive power belongs to the President" rather than the "balancing test" of the majority.

A year later, in 1989, in Public Citizen v. Department of Justice, Scalia recused himself, but nevertheless saw three other Justices -- Rehnquist, Kennedy and O'Connor -- move closer to his "bright line" separation of powers stance.

Indeed, the dissenters wrote lines that could have come from Scalia's pen, emphasizing that when "the Constitution by explicit text commits the power at issue to the exclusive control of the President, we have refused to tolerate any intrusion by the Legislative Branch."

This background provides a clearer explanation of why Justice Scalia no doubt did not want to recuse himself from the Cheney case: He may be counting heads. Suppose he has Rehnquist, Kennedy, O'Connor, and Thomas on his side. If he were to recuse himself, the Court would be caught in a 4-4 tie, and the Court of Appeals' decision not to allow Cheney's appeal would stand. But having refused to recuse himself, he -- and Cheney -- may well prevail, 5-4, and then proceed to write some new law.

What are the implications if Cheney does win this case, and Scalia's bright-line rule prevails? For a sense of them, it's useful to look to Judge Sullivan's well-reasoned opinion (and remember, Judge Sullivan has been nominated to judgeships by two Republicans -- as well as one Democrat).

Judge Sullivan wrote that "The implications ... are stunning," for Cheney's position is "untenable." He gave a few key examples of what accepting the bright line rule would mean:

The result, Judge Sullivan argued persuasively, would be to "eviscerate the understanding of checks and balances between the three branches of government on which our constitutional order depends." In other words, it would be to forever change the government, and the system our Founders envisioned.

This is a case to be watched -- and not only because the stakes are momentous. This case also has s political implications for an election year. If the Court decides against Cheney, what really went on in those Energy Group meetings could be exposed -- and it probably won't be pretty.

On the other hand, if the Court decides in Cheney's favor, John Kerry will have a powerful argument as to why it is time to stop stocking the federal judiciary with ideologues. It is moderates with bipartisan support, such as Judge Sullivan, who will come to right and reasonable rulings -- not mavericks like Justice Scalia.