Duck Duck Recuse? Foreign Common Law Guidance & Improving Recusal of Supreme Court Justices

I. IntroductionA litigant preparing for oral arguments before the Supreme Court has reached the final step in an expensive and time-consuming appellate process. Based on the ability of the attorneys to convince five Justices of the merits of a particular legal argument, one litigant's rights will be adjudicated and often a broad constitutional question will be answered. But what happens when one party becomes concerned that the Court's decision might be based not on the strength of the legal reasoning, but rather on some external interest of one or more of the Justices? To avoid the appearance of bias in those types of cases, a Supreme Court Justice is required to recuse himself from any case in which the Justice's participation would create a reasonable apprehension that he would not act impartially.1The difficulty lies in identifying what situations support that type of apprehension. For example, should a Supreme Court Justice be disqualified from a case argued by his former law partner? What about a case on a topic that the Justice has already discussed in Congressional testimony? Should a Justice participate in a case against a member of the executive branch with whom the Justice had recently vacationed? In these three situations-the most controversial recusai cases in the Supreme Court during the last sixty years-Justices Black, Rehnquist, and Scalia, respectively, held that recusai was not required.2The uproar that accompanied these decisions is indicative of public dissatisfaction with recusai policy in the Supreme Court.3 The widespread criticism of Justice Scalia's recent denial of a motion to recuse himself4 shows that, despite extensive academic and Congressional interest over the past sixty years,5 today's process is not successful at producing predictable results. Although development and adoption of a concrete mechanism for recusai is by no means a simple task, the vital role that disqualification plays in preserving the appearance of judicial impartiality requires that a solution to recusai in the Supreme Court be found. Using the facts of Justice Scalia's March 2004 decision as a convenient test case, this Note seeks to propose such a solution.The recusai challenge to Justice Scalia emerged from a suit filed by the Sierra Club in April 2002.6 The Sierra Club alleged that the National Energy Policy Development Group (NEPDG), an organization established by President Bush to develop a cohesive national energy policy and chaired by Vice President Cheney, had violated federal law by having nongovernment employees participating as de facto members.7 The district court entered a discovery order requiring Vice President Cheney and other senior Executive Branch officials to produce meeting minutes and other materials tending to show the structure and membership of the NEPDG.8 The circuit court denied the government defendants' subsequent appeal for mandamus relief from the discovery order, and the Supreme Court granted certiorari.9In March 2004, prior to oral arguments before the Court, the Sierra Club submitted a motion to disqualify Justice Scalia claiming that his recent duckhunting vacation with Vice President Cheney had created a reasonable apprehension of bias.10 The two men traveled aboard the Vice President's official aircraft to Louisiana where they joined a group of thirteen others for a week of hunting and fishing.11 According to Justice Scalia's description of the facts, his time in the hunting camp only overlapped with the Vice President for two days of the trip, and during that period, they had no private moments together.12 When details of the event came to light, however, newspapers nationwide were quick to assert that the hunting trip raised the specter of judicial bias and urged Justice Scalia to recuse himself from the matter.13 In fact, the Sierra Club cited the press outcry as primary evidence of how Justice Scalia's vacation had created an appearance of partiality. …