Another example is CHief Justice Rehnquist's opposition to the civil ritghts cause of action in VAWA, stated both both before and after VAWA became law. (I believe there was discussion of this on the list a seemingly long time ago; I have documentation) He didn't recuse himself in *Morrison*. Lynne Prof. Lynne Henderson Boyd School of Law--UNLV 4505 Maryland Pkwy Box 451003 Las Vegas, NV 89154 702-895-2625 ----- Original Message ----- From: "Bryan Wildenthal" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Wednesday, October 15, 2003 5:03 PM Subject: Re: recusal
> Indeed, didn't O'Connor and Rehnquist join Burger's majority opinion in Chambers (1983) that I seem to recall expressly cited the Pledge of Allegiance as an obvious example of a permissible governmental reference to religion? Or was that Lynch v Donnelly (1984)? How would that be different in principle from Scalia's public comments? Maybe they could argue it didn't address the application in the schools context. > > I think it is inappropriate for a Justice to speak in a public and incautious way about issues likely to come before the Court, but I don't think it amounts to a conflict of interest comparable to a personal or financial connection to a case. It's more analogous, as Sandy suggests, to generalized (or sometimes very specific) "intellectual bias" or "prejudgment" of an issue on the merits. > > Bryan Wildenthal > Thomas Jefferson School of Law > > -----Original Message----- > From: Discussion list for con law professors > [mailto:[EMAIL PROTECTED] Behalf Of Sanford Levinson > Sent: Wednesday, October 15, 2003 4:20 PM > To: [EMAIL PROTECTED] > Subject: Re: recusal > > > Given my own views, I'm delighted that Scalia will not be participating, > but I'm not clear why he has to recuse himself because of his candid > remarks to the Knights of Columbus and not, say, if he had written one of > his patented dissents in a school prayer case that made reference to the > Pledge and castigated the majority for adopting an illegitimate doctrine > that, if applied conscientiously, would "exclude God from the public forums > and from political life." > > Recall Rehnquist's and O'Connor's statements in Garcia that they basically > couldn't wait until they had the votes to overrule that decision and return > to Ussery. Why didn't that compel recusal? Or Brennan's and Marshall's > repeatedly saying that the death penalty was unconstitutional in all > circumstances presumably can be interpreted as meaning that they had > "pre-judged" each particular capital punishment case. Should they have > recused themselves? None of these are rhetorical questions. I really > don't understand the theory (or practice) of recusal. > > sandy > > > > At 06:08 PM 10/15/2003, you wrote: > > According to a Linda Greenhouse story in today's NY Times, Newdow > > is a "lawyer and a medical doctor who has represented himself in the > > litigation." (page A14). > > Newdow apparently moved for recusal of Justice Scalia because of > > remarks that Justice Scalia made regarding the specific case at a meeting > > co-sponsored by the Knights of Columbus, which, according to the NY > > Times, "played a leading role in persuading Congress to add 'under God' > > to the pledge." NY Times: "Justice Scalia's speech at an event for > > Religious Freedom Day pointed to the Ninth Circuit's decision in this > > case as an example of how courts were misinterpreting the Constitution to > > 'exclude God from the public forums and from political life.'"
