Scalia recused self once before, but this time ...??

"Justice Antonin Scalia has taken himself out of the Supreme Court's review of whether "under God" should be in the Pledge of Allegiance. Scalia had been asked not to participate in the marquee case of the Court's new term — the constitutionality of the regular morning classroom salute to the American flag in public schools — because he mentioned the case in a speech in which he complained about courts stripping God from public life.

Those remarks were specific enough to keep him out the pledge case, Elk Grove Unified School District v. Newdow, but probably not other church-state issues, ethics experts said. Scalia has not bowed out of those [other separation of church and state] cases and he probably should not have to, say legal experts who reviewed an Associated Press transcript of Scalia's remarks in January at a Knights of Columbus event in Fredericksburg, Va.

In the speech Scalia said that the pledge fight should be handled democratically, not by courts. "But the new constitutional philosophy says if those who decide the law think it would be a good idea to get religion out of the public forum, then it will be exterminated from the public forum through judicial fiat," he told a rally celebrating religious freedom.

Following a long-standing tradition at the Supreme Court, Scalia has given no reason for his recusal. Scalia, 67, is a Roman Catholic and father of nine children, including a priest. He was named to the high court by President Reagan in 1986 and is considered its most conservative and outspoken member.

Stephen Gillers, law professor and ethics expert at New York University, said Scalia got into trouble by specifically mentioning a California ruling in the pledge case and then following it up with commentary about his beliefs on the subject.

"But the speech provides no basis for a blanket exclusion from all church-state cases," Gillers said.

"He is being blunt, but I don't think this requires him to disqualify himself generally from church-state cases," said another ethics expert, Steven Lubet of Northwestern University. "If it stands for anything, this recusal stands for the proposal that sitting judges should not comment on pending cases, period"."

Ethicists don't see Scalia sitting out most church-state cases [2003]

"Newly-disclosed comments by US Supreme Court Justice Antonin Scalia made after a speech [recorded video] at the University of Fribourg in Switzerland earlier this month have touched off a furor in the lead-up to Tuesday's oral arguments in Hamdan v. Rumsfeld [Duke Law backgrounder; merit briefs] on the constitutionality of using military tribunals [JURIST news archive] to try foreign terror suspects. Asked about the constitutional rights of Guantanamo detainees following his March 8 talk [University of Fribourg announcement, in French], Scalia said bluntly that "foreigners, in foreign countries, have no rights under the American Constitution." In reference to detainees receiving civil court trials instead of facing military tribunals, Scalia said of a prisoner, "If he was captured by my ]army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy." Newsweek has more."

Scalia remarks spark furor as high court prepares to hear military tribunals case

Having recused once, and learned he could thereafter just tough it out, many don't think he's going to recuse himself in this most recent flap. The Stop the ACLU blog ("Beating them with their own Sickle and Hammer!") says,

"I believe that is clear that Justice Scalia’s remarks were acedemic in nature, and were certainly for the purposes of legal education. I don’t think that he will recuse himself, as it would affect the outcome of the case. However, the recusal its basically up to the judge, and I doubt that Justice Scalia will recuse himself from this."

Chief Justice John Roberts has recused himself from the hearing because he ruled on the case while he was on a federal appeals court.

More supremes: The deadly controversy over the value (vel non) of foreign opinion
Cassandra