Quacks, Air Tickets, and Caesar's Wife

March 24th, 2004

Don’t get the title wrong. The wife in question is not mine.

When my wife and I discussed Justice Scalia’s refusal to recuse himself in a case before the court to determine whether a committee headed by Vice President Dick Cheney had to reveal to the congress its membership, she initially thought that Scalia was right; he shouldn’t recuse himself. I pointed out something that changed her mind. She then suggested that I write a column about it. I declined on the ground that there were already so many editorials on the subject that I could bring nothing new to the debate.

This morning I read an Op-Ed piece in the New York Times entitled “The Wrong Ticket to Ride” by Ian Ayres and Barry Nalebuf, two Yale professors. Then I read Scalia’s entire 21 page defense. That was red flag to the bull, and here I am.

Let’s start with Scalia’s defense. Scalia is nothing if not learned. He cites instance after instance in which mere friendship with an official part to a Supreme Court case after case in which mere friendship has been held not be grounds for recusal. I go with him there. Obviously, at the very least, Supreme Court justices are appointed by presidents who are often their friends. If a justice had to get off the bench every time a case came up involving the president, the court might have a tough time reaching a quorum, never mind a majority.

However, the relevant facts to me are these: Scalia had been going duck hunting during his winter break with friends in Louisiana for some years. Last year, after the court had agreed to hear the case against Cheney, he was again invited to go ducking hunting. As Scalia says, since he knew that his friend Dick also likes to kill ducks, he suggested to his Louisiana friend that Cheney might be invited. The Louisiana friend was glad to oblige. Cheney accepted and asked Scalia whether he and two family members might like to hitch a ride to Louisiana on the vice-presidential plane. (Cheney is required to fly on a government plane for security reasons).

That’s what happened. The group flew down on the plane, they lived in the same lodge (although the VP had a separate bedroom), ate together, hunted together (although, according to Scalia, never in the same blind), fished together (whether or not they were in the same boat Scalia doesn’t say), but when he came home, Scalia flew commercially. In so doing he bought a round trip ticket to Washington without intending to use the return ticket because it was cheaper than buying a round trip ticket. At least Scalia was right about that. It is cheaper.

Scalia argues that during the entire time he was probably not alone with Cheney more than a few seconds, that Cheney’s offering to fly him down in the VP plane gave him nothing of value because in the end he had to buy round trip transportation anyhow, and nothing he did compromised his impartiality whatever.
Scalia also argues that he is entitled to participate in this case because the decision in the case “would have no bearing upon the reputation and integrity of Richard Cheney.” How’s that? Cheney’s critics have accused him—rightly or wrongly—of allowing energy company executives to influence government policy in the electric industry thereby, among other things, almost if not actually bankrupting California and gouging consumers generally. Cheney has refused to reveal who was on the committee claiming it is none of congress’s business even though a statute would seem to provide otherwise. If the decision goes against Scalia’s friend Cheney’s position, you can bet your bottom dollar that it will be a severe blow to Cheney’s (and Bush’s) “reputation and integrity.”

But here comes the argument I love by Ayres and Nalebuff. They point out that under airlines rules, a round ticket may not be used for one way transportation only. Indeed, some airlines will charge you the one way fair if they figure it out or refuse to board the passenger. If Justice Scalia had no intention of using the return portion of the ticket then, to quote A & N, “he has [to admit] to buying a ticket under false pretenses. He made a promise without any intention to fulfill [its obligations]. Justice Scalia is no doubt familiar with the legal term for such an act: it’s called promissory fraud.”

Scalia’s argument that he received nothing of value he supports by suggesting that two tickets to a White House dinner might bring more at a charity auction than a flight on the V.P.’s plane. Maybe. But if that was the second prize, I wouldn’t mind having it. Certainly a flight on the V.P.’s plane would be more fun than even first class going in the same direction, not to mention the convenience of being met by an official car, etc.

Finally, what we are dealing with hear may not be actual prejudice, but it gives the appearance as such. Being chummy with a defendant, even one sued in his official capacity, whose reputation and integrity may be at stake, certainly gives rise to suspicion even though the relationship may be innocent. Like Caesar’s wife, I said, Justice Scalia must be above suspicion. My wife bought that argument.

Supplemental reading:

(perishable link)- "The Wrong Ticket to Ride” by Ian Ayres and Barry Nalebuf - New York Times- Op/Ed 3/24/04
Supreme Court of the United States- Memorandum of Justice Scalia No. 03-475/decided March 18th, 2004