I believe Justice Scalia was correct not to recuse himself in the Energy Task Force case. His memo showed that many of the allegations were based on false premises. E.J. Dionne may believe that Scalia should recuse because of his close relationship to the administration (and his role in Bush v. Gore), fails to acknowledge — let alone consider — how such a policy would impact the Court. As Scalia noted, there have been many justices with close personal ties to the White House, and this has never been the basis for a recusal in a suit brought against a government official in his official capacity. Should Justice White have recused in cases involving RFK? I think not. (Nor, for the record, do I believe Justice Ginsburg should recuse in cases involving the NOW Legal Defense and Education Fund.)
Nonetheless, as Ian Ayres and Barry Nalebuff point out, Scalia’s memo does suggest that he purchased a round-trip plane ticket under false pretenses. They write in the NYT:
He made a promise without any intention of fulfilling it. Justice Scalia is no doubt familiar with the legal term for such an act: it’s called promissory fraud.
The airlines’ policy may be annoying, inconvenient and customer-unfriendly. But they can legally insist that their passengers abide by it. And certainly a strict believer in the rule of law like Justice Scalia would agree. Then again, if a case about the airlines’ pricing practices ever reaches the Supreme Court, maybe Justice Scalia should recuse himself.
UPDATE: Several readers think the Ayres-Nalebuff argument is too cute by half. Even assuming that it would be wrong for Scalia to purchase a less-expensive round-trip ticket if he had no intention of using both legs — and that a contract with such terms existed between the Justice and the airline, it’s still not clear Scalia did anything wrong. Rabbi Mark Ankcorn writes:
Scalia’s memo specifically says he was invited by VP Cheney to fly with him on a “space available basis,” which as anyone who’s ever flown government (i.e. Military Airlift Command, among many others) knows means you can be bumped at any time up to the point where the wheels lift off from the ground. Given that his flight with the Vice President was not guaranteed and he wanted to have a vacation regardless of the Vice President’s plans, he purchased a round-trip ticket to ensure that he would get there on time. Not using the first leg of a rt ticket because of unforeseen circumstances is specifically allowed by both policy and contract terms.
As for the underlying issue, I believe it is perfectly acceptable for airlines to offer less-expensive round-trip tickets on the condition that the purchaser commit to flying round-trip. Although such a contract may be difficult, if not impossible, to enforce (other than by canceling the second leg of a trip if the first leg is unused, as some airlines do), an individual is morally bound to live up to the terms of such a contract into which they enter voluntarily.
UPDATE: TMLutas and Contendem both note that Ayres and Nalebuff engage in a bit of bait-and-switch, by comparing the price of a restricted round-trip with an unrestriced one-way fare, the latter being far more expensive than a restricted one-way fare.
More updates are up here.
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