Justices Gorsuch and Kavanaugh Recuse from Guantanamo Bay Case

With the right petition, we could see recusals from Justices Kagan, Gorsuch, Kavanaugh and Jackson

Josh Blackman |The Volokh Conspiracy | 5.17.2021 7:36 PM

Today the Supreme Court denied cert in Ali v. Biden. This case was filed by Abdul Ali, a Guantanamo Bay detainee. Linda Greenhouse wrote about his case earlier this month. The denial was not surprising. In the thirteen years since Boumedienne, the Court has shown zero interest in Guantanamo. (Another sad Bar Mitzvah). What was noteworthy about this denial, however, were the recusals.

The petition for a writ of certiorari is denied. Justice Gorsuch and Justice Kavanaugh took no part in the consideration or decision of this petition.

Justice Kavanaugh's recusal makes sense. He wrote the panel decision in 2013. But what about Justice Gorsuch? My theory: he recused based on his service in DOJ. From 2005-06, Gorsuch served as the Principal Deputy to the Associate Attorney General. He was assigned to work on the war on terror cases. He also helped draft the Detainee Treatment Act.

I checked with Charlie Savage, who is a walking encyclopedia. He confirmed my suspicion.

Supreme Court denied cert in Abdul Razak Ali v Biden, a Guantanamo due-process case. Kavanaugh and Gorsuch recused. (h/t @JoshMBlackman). They don't say why, but Kavanaugh heard Gitmo habeas cases as an appellate judge & Gorsuch worked on Detainee Treatment Act in Bush43 admin. pic.twitter.com/Y4FXhJLCUc

— Charlie Savage (@charlie_savage) May 17, 2021

If the Court were to ever take another GTMO case, there is a good chance that Justices Kavanaugh and Gorsuch would recuse. At that point, the seven-member Court would split 4 conservatives and 3 liberals. Yet, Justice Kagan may also have to recuse if she worked on a GTMO case during her ever-so-brief stint as SG. Plus, if/when KBJ replaces Justices Breyer, she may have to recuse as well.

These issues could be decided by a very short-handed Court. If the stars aligned, we could get down to a five-member Court! Justice Sotomayor would stand alone. And there would be no quorum.

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the President of the Harlan Institute. Follow him @JoshMBlackman.