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Supreme Court Justice Antonin Scalia on Thursday defiantly refused to recuse from a pending case in which his friend and recent duck-hunting companion Vice President Dick Cheney is a named party. In a rare memorandum, issued after weeks of controversy, Scalia said his reading of his duties as a justice require him to stay in the case, which he said involves Cheney only in his official capacity. “A rule that required members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling,” he said. In lower courts, a judge who steps aside from a case can be replaced by another judge — but not at the Supreme Court, Scalia noted. Newspaper editorial writers have been calling on Scalia to recuse since a Los Angeles Times story drew a connection between Cheney v. United States District Court for the District of Columbia, No. 03-475, and Scalia’s January hunting trip to Louisiana with Cheney, hosted by oil services executive Wallace Carline. The case — set to be argued April 27 — asks Cheney to release information about participants who attended meetings of his energy policy task force. The Sierra Club, a party in the case, filed a motion seeking Scalia’s recusal. Scalia’s 21-page memorandum was in response to that motion, which, as is custom, the clerk of the court referred only to Scalia, not the full Court. Scalia’s announcement, which took swipes at the Times and “so-called investigative journalists,” appears to end the matter, at least within the Court. Alan Morrison, a veteran Supreme Court advocate representing the Sierra Club, said last week that if Scalia did not recuse, he would ask the full Court to pass on Scalia’s inaction. But after Scalia’s memo was issued Thursday, indications from the Sierra Club were that no further action will be taken to appeal to the full Court. In announcing his decision, Scalia offered a history of close friendships between justices and official litigants — the late Byron White skiing with then-Attorney General Robert Kennedy while Kennedy was a party in cases before the Court, and the late Robert Jackson vacationing with President Franklin Roosevelt. “A no-friends rule would have disqualified much of the Court in Youngstown Sheet & Tube Co. v. Sawyer,” Scalia said, referring to the famous 1952 opinion that held that President Harry S. Truman did not have authority to seize the nation’s steel mills during a labor dispute. “Most of the justices knew Truman well, and four had been appointed by him.” Scalia acknowledged that “times have changed” regarding ethical standards, and said justices no longer are close confidants and advisers to presidents as they once were. But “friendship and social intercourse” between justices and officials of other branches, he said, “has not been abandoned and ought not to be.” The fact that Cheney was a named party in the case is irrelevant, Scalia wrote, because Cheney has only an official — not personal or financial — stake in the case. Scalia described the case as a “run of the mill” dispute about compliance with the Federal Advisory Committee Act. “Nothing this Court says” in the case, Scalia said, “will have any bearing upon the reputation and integrity of Richard Cheney.” Scalia acknowledged there could be “political consequences” for Cheney flowing from disclosures about the task force that could be triggered by a Supreme Court ruling against Cheney. “But political consequences are not my concern, and the possibility of them does not convert an official suit into a private one,” Scalia wrote. “It seems to me quite wrong (and quite impossible) to make recusal depend upon what degree of political damage a particular case can be expected to inflict.” Scalia’s memo recounts the duck-hunting trip in detail, revealing for the first time that it was he who invited Cheney to join in. After learning that host Carline admired Cheney, Scalia said he suggested the trip to Cheney, “with whom I am well acquainted (from our years serving together in the Ford Administration).” Scalia headed the Justice Department’s Office of Legal Counsel from 1974 to 1977. Cheney accepted the invitation last summer and offered to let Scalia join him on the flight down aboard a government jet. Scalia said one of his sons and a son-in-law also joined the trip — not his daughter, as some press accounts had reported. But because Scalia wanted to return to Washington later than Cheney did, Scalia said he bought his own round-trip ticket to Louisiana anyway, using the return-trip ticket only. “None of us saved a cent by flying on the Vice President’s plane,” Scalia wrote. Scalia also criticized the Los Angeles Times for its subsequent stories questioning Scalia’s recusal policies. One story highlighted a speech Scalia gave to a Philadelphia group that opposes same-sex marriages while the gay rights case Lawrence v. Texas was pending last year. Another questioned Scalia’s visit to the University of Kansas Law School just weeks before its dean argued before the Court. Scalia called into question the report about his speech before the Philadelphia group, saying the group was not a party to any marriage litigation. The Court on Thursday released a note the organization sent to the Times detailing inaccuracies in its report. “My recusal would also encourage so-called investigative journalists to suggest improprieties and demand recusals for other inappropriate (and increasingly silly) reasons,” Scalia said. Scalia, known for his often stingingly critical judicial opinions, spoke broadly about criticism of the Supreme Court. “While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this court cannot,” he wrote. “The people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot faults.” The Scalia memorandum also takes a shot at Morrison, who filed the motion seeking his recusal in the Cheney case. Two days before Morrison filed a brief in the case last October, Scalia reveals, Morrison — whom he describes as “a friend” — wrote Scalia a personal note inviting him to speak to a class Morrison will be teaching at Stanford University. A copy of the note from Morrison, addressed to “Nino,” was released by the Court. Without using Morrison’s name in the memorandum, Scalia said lawyers for the Sierra Club were seeking to impose “a standard regarding friendship, the appearance of friendship, and the acceptance of social favors, that is more stringent than what they themselves observe.”

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