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Antonin Scalia = Justice Cheney

New York‘s interview [1] with Justice Scalia is drawing snark from the left (about Scalia’s belief in the devil) and no doubt nods of assent from the talk-radio right (the justice reveals his media-diet staples to be the Washington Times, Wall Street Journal, and Bill Bennett radio show). What caught my eye, however, were Scalia’s references to his Watergate-era experiences. They put me in mind of Barton Gellman’s Cheney book, Angler [2], which made me aware [3] of how Congress’s reining in of Republican presidents Nixon and Ford shaped Cheney’s view (as well as Donald Rumsfeld’s) of executive power. What Scalia says sounds familiar:

It was a terrible time, not for the Republican Party, but for the presidency. It was such a wounded and enfeebled presidency, and Congress was just eating us alive. … It was a time when people were talking about “the imperial presidency.” I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a ­democracy—that will be the source of tyranny.

The Framers, of course, were writing the new Constitution under a system whose existing charter, the Articles of Confederation, had hardly any executive power whatsoever. The critics of their handiwork, the anti-federalists, were greatly concerned about the tyrannical potential of the executive the proposed, but the Framers could see—as a glance at the Articles would show—that America in the 1780s wasn’t suffering from a surplus of power in the offices of a single magistrate. Have things changed at all in the ensuing 230 years? Perhaps not if your perspective is that of the Nixon White House.

Pressed to cite a heroic moment in his career—Scalia, to his credit, isn’t eager to name one—he finally cites his refusal to recuse himself from a case involving Dick Cheney’s claims of executive privilege for his energy task force. (Scalia had gone hunting with Cheney and, as CNN reported [4], “Scalia and Cheney also had a private dinner with Defense Secretary Donald Rumsfeld on Maryland’s Eastern Shore in November, when the Supreme Court was considering Cheney’s appeal.”)

“Most of my opinions don’t take guts,” Scalia tells New York‘s Jennifer Senior. “They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.”

14 Comments (Open | Close)

14 Comments To "Antonin Scalia = Justice Cheney"

#1 Comment By Fran Macadam On October 7, 2013 @ 12:32 am

The difference between them is that while Scalia believes in the Devil, Cheney is in cahoots with him, without believing in him.

To recuse himself in that case would have set a crippling precedent – Washington is so rife with incestuous financial and political conflicts of interest, practically nothing would be able to be ruled upon. It took courage – or maybe the Catholic equivalent of chutzpah – for a judge to so blatantly violate the fiction of impartiality.

#2 Comment By philadlephialawyer On October 7, 2013 @ 1:20 am

Whether Scalia was correct in refusing to recuse himself or not, the decision was hardly a “courageous” one. Courage is about facing danger, physical danger certainly, but it can be other things, like financial danger, danger to the things one holds dear, like one’s home, one’s relationships, friendships, family and so on. But what danger did Scalia face? That some folks in the media would criticize him, perhaps, at most, inordinately and unfairly, for failing to recuse himself? As he says himself, it let him in for “a lot of criticism.” Um, big deal. A man with a lifetime appointment, who has to be impeached to lose his job, took an action which (giving him the benefit of the doubt) he believed to be right, but, some people in media and government “criticized” him for it. Wow, not exactly a profile in courage, is it?

I agree, it is to his credit that he was not eager to claim any courage or heroism. But it would perhaps have been better if he had stuck to that, because in the case he mentions he showed neither.

#3 Comment By Labropotes On October 7, 2013 @ 9:41 am

But isn’t Scalia right? Congress can impeach both presidents and judges for any cause it deems sufficient. It holds the power of the purse. Ultimately, congress is the principal power, isn’t it?

#4 Comment By Eric K. On October 7, 2013 @ 1:15 pm

Labropotes, you asked: “Ultimately, congress is the principal power, isn’t it?”

I think that’s what Scalia was getting at. Legally, Congress has much more power than the President should it choose to use it, or as Scalia says, “get its act together.” That “if” is the important word.

#5 Comment By Fran Macadam On October 7, 2013 @ 1:38 pm

“But isn’t Scalia right? Congress can impeach both presidents and judges for any cause it deems sufficient. It holds the power of the purse. Ultimately, congress is the principal power, isn’t it?”

The “power of the purse” is held by the donorists who own most of Congress.

#6 Comment By Red Phillips On October 7, 2013 @ 4:52 pm

Scalia is a Catholic. Of course he believes in the Devil. Liberals really need to get over themselves.

#7 Comment By Daniel McCarthy On October 7, 2013 @ 4:58 pm

Scalia is certainly right about the fundamental power that Congress has under the Constitution. But which branch has shown a greater propensity to wield power aggressively—with or without the Constitution—over the last century? The danger isn’t congressional tyranny, it’s congressional abdication or anarchy.

#8 Comment By steve On October 7, 2013 @ 5:38 pm

It was courageous to not recuse himself from a case involving a close friend? One he was hanging out with while deciding the case? Do they even wonder why we don’t trust the Court anymore?


#9 Comment By EngineerScotty On October 7, 2013 @ 5:45 pm

A more correct observation that a SUPERMAJORITY in Congress can run roughshod over a president–overriding his vetos, even removing him from office. (The latter is arguably easier than the former, as impeachment and removal requires 2/3 of the Senate but a bare majority in the House, but overriding a veto requires a 2/3 majority in both).

But we haven’t had a legislative supermajority of this magnitude in a long time–and when such supermajorities do get elected (i.e. during the 1930s), they generally rule alongside a like-minded president, not one who has to cower in terror from a legislature run amok.

#10 Comment By Ed On October 7, 2013 @ 7:08 pm

You may need a “supermajority” in both houses to get things done against the president’s will, but a simple majority in both houses can do much to frustrate a president’s plans.

That doesn’t mean that Congress dominates, but it does make things very frustrating for presidents. Generally speaking, though, you won’t get supermajorities in Congress with a president of the opposite party in power down the road.

Lyndon Johnson in 1964 and Jimmy Carter in 1976 both won over 3/5th of the Senate, and thus were filibuster-proof.

#11 Comment By Puller58 On October 8, 2013 @ 7:36 am

Scalia has a high opinion of himself. That’s all he needs in his world.

#12 Comment By Gene Healy On October 8, 2013 @ 9:22 am

Still, Scalia sharply dissented from pal Cheney’s view that the president can designate US citizens enemy combatants and lock them up indefinitely:


…Thomas took the polar opposite view: that the president’s war powers are essentially unlimited and unreviewable–yet most libertarians I know like him better for some reason.

#13 Comment By An Anachronistic Apostle On October 8, 2013 @ 6:10 pm

Scalia is a Catholic. Of course he believes in the Devil.

Whatever. I rather think the Devil believes in us, to get the job done with a true dastardly vileness.

#14 Comment By Joseph R. Stromberg On October 8, 2013 @ 9:23 pm

The bottom line with Supreme Court “conservatives” is that they all support presidential supremacy (a.k.a. unitary executive theory). Their efforts in support of artificial states rights, by gift of the Court, and their wild-eyed rhetoric on social issues are ultimately secondary.

Scalia is at least entertaining. His opinions and dissents almost always involve a nearly irrelevant tour of the cinq ports, the Palatinate of Durham, the legal peculiarities of Guernsey and Jersey, and wrathful commentary on the utter foreignness of Scottish law.

Yet right-wingers like to say we shouldn’t look at *foreign* law…