Friday, March 19, 2004; Page A22

JUSTICE ANTONIN SCALIA explained yesterday in a 21-page memorandum why he believes there is no problem in his going duck hunting with Vice President Cheney and then ruling on the vice president's case. The opinion is replete with legal argument, facts and rhetoric -- everything but common sense. Mr. Scalia believes that he knows better than anyone else how this episode ought to look to the public. No reasonable person apprised of the facts, he argues, would question his impartiality in considering a lawsuit over Mr. Cheney's energy task force; that being the legal standard, there's no reason for him to step aside. What of the flood of editorial pages -- this one included -- that called on him to recuse himself for the appearance problem the trip creates? He will not, he says, do so in reaction to "a blast of largely inaccurate and uninformed opinion."

Mr. Scalia's account adds useful context, some of which ameliorates the appearance problem a bit. The trip was planned before the energy task force case came before the court, and Mr. Scalia has hunted for several years at the Louisiana camp of Wallace Carline, the businessman who was his host for this trip. Yet some of the facts Mr. Scalia recounts heighten the problem: The justice himself, it turns out, was responsible for Mr. Cheney's invitation to this year's hunt. And Mr. Scalia's claim that flying to Louisiana on the vice president's jet was just an example of the "social courtesies" officials provide one another doesn't wash. Such social contacts and friendship would, he concedes, require recusal were Mr. Cheney being sued in his individual capacity. Here, however, Mr. Cheney is being sued in his official role, and social contacts between officials and justices have never triggered recusal in such instances. To do so now, Mr. Scalia argues, would set a dangerous precedent.

Yet this is not, Mr. Scalia's claims notwithstanding, a typical official-capacity case. It involves a major political issue with which Mr. Cheney is personally connected. And were it decided in Mr. Cheney's favor by a 5 to 4 vote, with one justice in the majority having recently shot ducks with the vice president, many Americans would undoubtedly question the fairness of the adjudication.

One example of Mr. Scalia's inability to see this issue dispassionately is his insistence that this page was "misleading" when it described Mr. Carline as an "energy industry executive." Mr. Carline, the justice writes, is not "an 'energy industry executive' in the sense that summons up boardrooms of Exxon Mobil or Con Edison." What is he then? "He runs his own company that provides services and equipment rental to oil rigs in the Gulf of Mexico."

Supreme Court rules, which leave decisions about recusals up to the justice involved, inevitably make for awkward choices. Mr. Scalia deserves credit for a detailed, public explanation of his choice, an explanation that he was under no obligation to provide. But we'd guess that many reasonable people will remain, like we are, unpersuaded.