Recusal of Supreme Court justices is once again in the news. There are continued calls for a code of ethics binding on Supreme Court justices and for stricter recusal rules, although some of the clamor quieted down after the Supreme Court stepped back from confrontation with the Obama Administration over its health care law. I have disagreed with some, but not all, of the claims that justices should recuse from certain cases, particularly demands for recusal of a justice because of family relationships with persons who are not (i) parties in the case, (ii) lawyers in the case, or (iii) financially interested in the outcome of the case.
One reason for this is my worry about the impact recusal has on case outcomes, particularly at the Supreme Court. A single recusal in a case could lead to a 4-4 decision upholding the lower court until the same legal issue comes along in another case, which may be years later. Multiple recusals could actually change the result of a case and the legal rule that goes with it.
I have suggested ways that the justices could minimize recusals, for example by selling individual stocks in their portfolios and investing in mutual funds instead, and also by avoiding public statements that create the appearance of bias (do we really need to have a “Tea Partying justice”?). A little self control would go a long way.
Finally, in cases where recusal is necessary, should the case nonetheless be heard by a full Supreme Court if at all possible? One way of doing this would be to allow a retired Justice of the Court to sit by designation, starting with the justice who retired most recently (e.g. in reverse order of seniority). The opinion handed down might or might not reflect the views of the currently active justices of the Supreme Court and the legal rule in the decision could be overturned when a similar case comes up later and the recused justice rejoins his colleagues. Still, the formerly recused justice would probably factor the precedential value of the earlier case into his or her approach to the same legal issue in a later case, and the Court might also be more reluctant to grant cert on an issue that it has already decided. Also, litigants whose cases have been granted cert should perhaps be entitled to be heard by an entire Supreme Court, rather than a Court that could be deadlocked 4-4. Others have raised this possibility before, including Senator Patrick Leahy. For a thorough analysis of the legal and policy issues that could arise from such proposals, see the following article by Lisa McElroy and Michael Dorf.