Litigation

When Recusal is Shrouded in Mystery?

By Peter Hardin

You can expect to hear a good deal more about the practices of Supreme Court justices in deciding whether to disqualify themselves in certain cases, if for no other reason than the influential New York Times is writing a lot about it.

Not only did the Times publish an editorial and an article tied to the topic last month (click here and here for Gavel Grab posts, respectively), it has followed this week with an article entitled, “Being the Judge of Whether to Be the Judge.”

In the latest article, reporter Adam Liptak notes that Justice Elena Kagan has taken the bench for just 10 of 25 arguments so far this term, probably due to her stepping aside from cases in some way tied to her past work as U.S. solicitor general. Liptak uses Justice Kagan’s actions as a springboard to examine the justices’ practices:

“Her empty chair is an emblem of the Supreme Court?s sometimes rigorous, sometimes idiosyncratic and often quite mysterious recusal practices.”

Recently Justice Kagan did not participate in weighing a request for the high court to intervene in lower court proceedings over the military’s “don’t ask, don’t tell” policy on gays serving openly in the military (see Gavel Grab). That raises a possibility of a 4-4 tie if the high court ends up considering an appeal in the case, the Washington Post reported.

The New York Times article offers an overview about how different justices have approached recusal, including the following statement by then-Chief Justice William Rehnquist in 2004:

?While a member of the court will often consult with colleagues as to whether to recuse in a case, there is no formal procedure for court review of a justice in an individual case.’

?This is because it has long been settled that each justice must decide such a question for himself.?

A different view is provided by Northwestern law professor Steven Lubet, who wrote recently that recusal motions should be reviewed by the full Supreme Court (see Gavel Grab).

Meanwhile, a figure central to some of the recent discussion about Supreme Court justices and recusal may be altering her high profile.

Virginia Thomas, the wife of Justice Clarence Thomas, is stepping down as head of Liberty Central, a conservative nonprofit organization, according to a Washington Post article.

Full post as published by The Gavel on November 15, 2010 (boomark / email).