Recusals and the "Problem" of an Equally Divided Supreme Court

By Black, Ryan; Epstein, Lee | Journal of Appellate Practice and Process, Spring 2005 | Go to article overview

Recusals and the "Problem" of an Equally Divided Supreme Court


Black, Ryan, Epstein, Lee, Journal of Appellate Practice and Process


INTRODUCTION

For over five decades now we political scientists have been systematically studying the United States Supreme Court. We have examined how the justices attain their seats, (1) what factors explain the Court's decision to grant certiorari, (2) what impact oral arguments have, (3) whether the Chief Justice self-assigns particularly important cases, (4) why the justices vote the way they do, (5) what rationales they invoke to justify their decisions, (6) and in what ways those decisions affect social, legal, and economic policy. (7) In short, it seems as though no feature of the Court has escaped our attention--with one notable exception: recusal. A search of political science articles in J-STOR (8) on the term "recusal" yields exactly one article, which, in fact, was not at all about recusal. (9) We also ought note that broadening the J-STOR search (to include terms such as disqualif! w/10 Supreme Court or disqualif! w/10 judge or disqualif! w/10 justice) was equally unproductive, turning up no articles. By contrast, a Lexis search of law reviews on that same term produces 1,395 articles. (10)

Why the discrepancy exists is a good question, but we do not think the answer is a lack of interest on the part of political scientists. Quite the opposite. While a justice's decision to recuse "isn't entirely ... discretionary," (11) as Justice Ginsburg once said, (12) neither is it entirely lacking in discretion:

   [F]or ... a court of appeals judge on a three-judge panel ... [i]f
   there were any doubt, that judge could step out and let one of her
   colleagues replace her. But on the Supreme Court, if one of us is
   out, that leaves eight, and the attendant risk that we will be
   unable to decide the case, that it will divide evenly.... When cases
   divide evenly, we affirm the decision below automatically. Because
   there's no substitute for a Supreme Court Justice, it is important
   that we not lightly recuse ourselves. (13)

Ifill underscores Ginsburg's point when she notes that the justices

   enjoy the unreviewable power to determine individually
   whether and when to disqualify themselves from cases in
   which their impartiality could reasonably be questioned.
   Historically this appears to have produced a highly
   idiosyncratic application of the [disqualification]
   standard. (14)

By way of example, she points to Justice Marshall's decision to recuse himself from cases in which the NAACP (or NAACP Legal Defense Fund) appeared as counsel, (15) and compares it to then-Associate Justice Rehnquist's refusal to disqualify himself in Laird v. Tatum. (16)

That room for choice exists over the decision to recuse provides the makings of a political science problem, (17) and we can think of many possible solutions. It may be, for example, that a justice is less willing to recuse herself in cases she thinks will produce an equally divided Court--a possibility to which Justice Ginsburg alludes above. So too, it could be that certain kinds of justices, perhaps those who are pivotal in a particular area of the law or who have been on the Court for some period of time, may also be less inclined to remove themselves from particular cases.

Other explanations are readily apparent, and later we discuss several. But the larger point is that a dearth of possibilities hardly exists. Where there is a void--and what we think explains the lack of research on recusal--is in the data to assess those explanations, and the near insurmountable obstacles in collecting such data. Fundamentally, the problem boils down to this: While we can observe when justices recuse themselves, we cannot observe when they considered recusing themselves but did not. (18) We thus lack a "denominator" for testing hypotheses about the decision to recuse; only by assuming that a justice could choose against participating in each and every case could we develop one. …

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