Why Justice Scalia should recuse himself from abortion cases

Why should Supreme Court justice Antonin Scalia recuse himself from abortion rights cases and related cases like McCullen v. Coakley? Because he’s married to an anti-abortion rights campaigner. See her page at the anti-abortion Nurturing Network:

Maureen Scalia
Crisis Pregnancy Counselor
Pro-Life Advocate

“I have been moved by the courage of so many who in their loneliness struggle to protect the life they nurture within.  Serving on the Board of the Nurturing Network is the culmination of my experience in working to protect and defend life.”

That is a big honkin conflict of interest.

The Nurturing Network is a response to the legalization of abortion – there was no such network before Roe v Wade. Its purpose is to persuade women to stay pregnant.

The Nurturing Network is an international charitable organization that responds to the immediate and comprehensive needs of a woman facing the crisis of an unplanned pregnancy. Founded and managed by Mary Cunningham Agee, TNN’s nearly 50,000 volunteer Resource Members provide all of the practical support a woman needs to nurture her child’s life—and make the most of hers as well.

During the past twenty-eight years, 24,000 women and children have been served through this grassroots Network that is active in all fifty states and in thirty foreign countries. Assistance is provided without charge and is available without regard to a person’s race, creed or economic circumstances.

The Nurturing Network’s objective is not a political one but a most practical one: to provide an authentic and life-affirming choice to women whose own support networks have let them down. Each woman served by TNN is empowered to move beyond her economic, emotional and social constraints in order to exercise her choice to have a healthy pregnancy and nurture the life of her child.

Not political at all. Right.


  1. Menyambal says

    I have been moved by the courage of so many who in their loneliness struggle to protect the life they nurture within.

    Wow. That sounds like happily-pregnant women are lost in the wilderness, being preyed upon by roving packs of compulsory abortionists.

    Whereas the opposite is pretty much the case, with forced-birthers stalking women’s clinics. And a supreme court Justice should not be involved with the kind of people who deny rights of women.

  2. Tommy Capitalist says

    Can this really be done?
    If say , sotomayor was married to someone who worked for plannede parenthood, would she need to recuse herself as well?

  3. david says

    It’s not a conflict of interest. It’s not even him stating his personal pre-judgement on an issue. It’s his wife’s political, or “charitable,” activities. That’s not grounds for recusal.

  4. says

    24k “women and children” in 28 years. That’s like 1000 “women and children” a year. Given that each case is 1 woman and one child, that’s less than 500 cases a year. In all 50 states plus 35 countries. Looks like they’re a big waste of resources…

  5. AsqJames says


    Especially when they’ve got “nearly 50,000 volunteer Resource Members”, meaning it takes nearly 100 volunteers working for a year to “serve” 1 woman & child. I guess we should be happy they’re so ineffective.

  6. says

    David #6

    It’s not a conflict of interest. It’s not even him stating his personal pre-judgement on an issue. It’s his wife’s political, or “charitable,” activities. That’s not grounds for recusal.

    The standard is impartiality in all it’s aspects, not just the avoidance of overt conflicts of interest or personal pre-judgements. You don’t think that if Scalia ruled against a pro-life appellant that he might get a frosty shoulder at home? I think most reasonable persons would expect that domestic disharmony would be a foreseeable consequence of him deciding a case in a way to which his wife (given her known pre-judgements) would object, and that therefore there is a reasonable perception of partiality which means that ethically he should recuse himself from such cases.

  7. david says

    Tigtog #9: since when has a supreme court justice been expected to vote according to his/her spouses views? Would your idea of “impartiality in all its aspects” extend to the opinion of parents, or cousins?

  8. loren says

    Supreme Court justices usually only recuse themselves for one of two reasons: (1) having a financial stake in one of the parties or in the outcome of the case (e.g., owning stock in a party), or (2) being related to one of the lawyers in the case.

    A spouse’s political views, even views they actively promote and work on, don’t rise to the level of conflict-of-interest that Supreme Court justices have traditionally employed in deciding on recusal. Of course, if the Nurturing Network was a *party* in a case, then that’d be a different matter. The risk of a ‘frosty shoulder’ at home isn’t enough.

    As an analogy, if Justice Breyer’s wife was discovered to be involved with the Human Rights Campaign, should Breyer then recuse himself from any and all cases involving gay rights or gay marriage?

  9. screechymonkey says

    So any Justice who has a spouse with opinions must recuse him/herself? That’s an impossible standard, and one that’s ripe for abuse.

    And moreover, I doubt anyone here honestly believes that Scalia’s wife’s job has anything to do with his decision. Scalia has opinions on abortion like he does on guns and free speech and search and seizure and dozens of other legal issues. Just like every justice does. We encourage judicial nominees to lie in the nomination process and pretend that “gosh, I’ve just never given any thought to Roe v. Wade, I guess I’ll deal with that if it comes up,” but surely we haven’t fallen for it?

  10. Pteryxx says

    A spouse’s political views, even views they actively promote and work on, don’t rise to the level of conflict-of-interest that Supreme Court justices have traditionally employed in deciding on recusal.

    That’s only because the Supreme Court, specifically, has given itself narrower standards for recusal than federal law applies. That’s all the more reason to challenge them to defend their decisions not to recuse themselves – and recusal motions do get filed.

    This article quotes the text of 28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge (Link to code)

    “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This includes when he “knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”

    The statute goes on to define “financial interest” as “ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party.”

    Surprisingly, Supreme Court Justices are not bound by the ethical rules all other federal judges are. As a bipartisan group of law professors proposing new rules for Supreme Court recusals recently explained, “While all other federal judges are required to abide by the Code of Conduct, and are subject to investigation and sanctions for failure to do so, Supreme Court justices look to the Code for mere ‘guidance,’ and are not obligated to follow the Code’s rules.”


    Further discussion: Health care case again raises recusal controversy

    An existing federal statute applies to Supreme Court justices and appears to cover a wide range of conflicts, but the court historically has interpreted the statute tightly. The justices say it applies only in situations where lawyer-relatives have active cases before the court, or when justices stand to benefit financially. The current statute already expressly identifies justices and requires recusal from “any proceeding in which the judge’s impartiality might reasonably be questioned.”

    The broad provision was supposed to make it easier for judges to withdraw rather than fall back on an overly restrictive duty to sit. Jurists typically have interpreted it as forcing them to continue on a case rather than succumb to compelling ethical conflicts that should disqualify them.

    and Should Scalia step aside in gay marriage cases

    But unlike all other federal judges, whose recusal decisions are subject to review, Supreme Court justices have the final word on their own recusal determinations. The court leaves it up to individual justices to decide whether to step down, and those decisions are not reviewed by the Supreme Court as a whole. Perhaps, as a result, it’s very rare for justices to recuse themselves simply because of the appearance of partiality. I can think of only one example in recent years: when Scalia stepped aside in the court’s consideration of the constitutionality of the Pledge of Allegiance’s phrase, “one nation, under God.” (As Linda Greenhouse explained in a New York Times piece, Scalia had made public remarks about the case before it reached the Supreme Court.)


  11. Pteryxx says

    (cont’d from previous)

    That NY Times article

    More specifically, Scalia has been making statements like “They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protesters?” and “This is not a protest case,” Justice Antonin Scalia said. “These people don’t want to protest abortion. They want to talk to the women who are about to get abortions and try to talk them out of it.” That tells me, and it should be obvious, that he has an unrealistic view of anti-abortion “counseling” that just happens to match how his spouse’s work is described. Even if her specific CPC, part of a supposedly apolitical organization where “saving” one woman and child takes 100 volunteers a year’s work, really lives up to its own promises and has never had its own volunteers go a few blocks down the road to “counsel” the clients of that Planned Parenthood clinic, I don’t think it coincidental that Scalia describes ALL clinic protesters as equivalents to his own family member. And the behavior of “sidewalk counselors” is absolutely key to the clinic buffer zone case under consideration.


  1. […] The role of Scalia’s wife as an anti-abortion activist has been noted before, particularly when the Susan Komen Race for the Cure Planned Parenthood debacle in 2012 spread past Karen Handel and drew a fellow Nurturing Network board member into the scandal. But with an actual court case lying in the balance, and repercussions from that ruling having the potential to spread to other cities that have their own buffers in place, some abortion rights activists are wondering if Scalia’s involvement in the case is a conflict of interest. […]

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