Justice Scalia has recently come under fire for duck-hunting with the Vice-President even as the Vice-President’s case was about to come before the Supreme Court.

That Court — which some say is behaving these days more like a political arm of the government than a judicial branch — heard arguments yesterday in Cheney’s attempt to keep Americans from knowing which oil executives wrote the national Energy Policy.

I won’t go so far as to make a prediction about what he’ll actually do, but I think Scalia is smart. And if Scalia is smart, he might consider this strategy:

1. Pretend to ask hard questions during oral argument. For example, he might decide to continue to wonder “whether ‘outsiders, nongovernment employees, were actually given a vote.'” While this is important — it is, after all, exactly what the public needs to know — it is not the issue before the Court. So asking these questions would be a no-brainer. Scalia can ask them to his heart’s content, which will make him look “even-handed.” And since they are irrelevant to the issue before the Court, they have no impact on the case itself.
2. Carefully gauge the situation when the Justices debate amongs themselves. Will there be a 6-3 split (which seems quite possible)? Great! Cheney only needs five votes! If he can get five votes without Scalia, then Scalia’s best bet is to dissent. He could either quietly dissent or he can actually — to avoid joining a dissent with which he will almost certainly disagree — write his own (innocuous) dissent.

One thing is almost a certainty, though. Cheney may have lost in two lower federal courts. He is not likely to lose in what appears increasingly as the United States’ newest and most supreme political organization: The Supreme Court.