SCALIA'S RECUSAL

Most of the commentary on Scalia's recusal seems to have focused on the relationship between his decision and the possibility of a 4 - 4 split in the pledge case; given that one of the jobs of court watchers is to read the tea leaves right, and given that Scalia has provided us with a new set of leaves, it's sensible that people would focus on that question. I realize that I'm not doing justice to the complexity of the arguments in Eugene Volokh's posts here and here, and Larry Solum's post here. Still, I think that a more basic question hasn't really been addressed, and it's not one that is simply a matter for "judicial ethicists" or whomever one presumes to be an expert in recusal decisions. (Indeed, the invocation of experts here reminds me of Thurman Arnold's suggestion that such invocations serve primarily to reassure common folk that everything is ultimately right with the world.)

No one who pays attention to the Court could really argue that Scalia's comments reveal anything about his disposition toward issues like the pledge case. Nobody really expects Scalia to read the briefs from Newdow and suddenly exclaim, "my God! the separationists were right all along! I must vote to uphold the 9th Circuit on this one, contrary to all of my expectations." Scalia is a reliable vote for the idea that invocations of God in public life are not prohibited by the 1st Amendment, at least as far as I understand his position.

So the reason why I think that Scalia's recusal is unfortunate is that it tends to perpetuate a myth about judicial motivations, namely, that judges are truly impartial when cases come before them. Anyone in Newdow's position (or anything similar to Newdow's position) will not expect to find an ally in Scalia no matter how super-cool his or her briefs and arguments are. Scalia is not neutral on this issue. The fact that he criticized the 9th Circuit in a non-judicial forum doesn't give us any new information about Scalia's views.

His recusal seems to uphold the principle that judges should not comment on current cases, a principle that is valuable, supposedly, because it is presumed to be linked to the legitimacy of the Court. But Scalia has not made any new friends by his recusal, and I would doubt that any intelligent observer would conclude that Scalia is now or ever was neutral on the issue of the pledge. (And if someone wants to bet on this, I'd counsel checking the Vegas odds before doing so!) So Scalia's recusal perpetuates not just a false myth (judicial neutrality), but the worst kind of false myth, namely, a false myth that everyone knows to be false, or at least everyone who has thought about these things knows to be false. Thus, Scalia's recusal adds nothing to people's beliefs about the impartiality of the Court -- unless he is primarily concerned with the uninformed and generally uninterested public. That would be a weird public for Scalia to be aiming at, however.

Perhaps I'm missing something, but I don't see what the point of his recusal was in the first place, except as a recognition of some formal duty of impartiality that no one expects him really to have held to in the first place. Call me a barbarian, if you want.

NOTE: some spelling and grammar mistakes corrected.