The Volokh Conspiracy

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Cert Grants With Recusals

Should the Justices choose a different petition where a Justice is recused?


Last week, the Supreme Court released a Statement of Ethics Principles and Practices. One of the rationales for not adopting the Conduct of Conduct, in its entirety, concerns recusals.

In regard to recusal, the Justices follow the same general principles and statutory standards as other federal judges, but the application of those principles can differ due to the unique institutional setting of the Court. In some instances the Justices' recusal standards are more restrictive than those in the lower court Code or the statute—for example, concluding that recusal is appropriate where family members served as lead counsel below. A recusal consideration uniquely present for Justices is the impairment of a full court in the event that one or more members withdraws from a case. Lower courts can freely substitute one district or circuit judge for another. The Supreme Court consists of nine Members who always sit together. Thus, Justices have a duty to sit that precludes withdrawal from a case as a matter of convenience or simply to avoid controversy.

I think this reasoning is persuasive, and explains why a different set of recusal rules should apply to the Supreme Court. There are only nine Justices, and the Court should decide cases with all members, where possible.

That principle brings me to today's order list. The Supreme Court granted cert in Loper Bright Enterprises v. Raimando. Jon Adler explained that this case may overrule, or at least narrow the Chevron doctrine. However, the Court will be shorthanded. Justice Jackson recused herself. She participated in oral argument in this case during her ever-so-brief stint on the D.C. Circuit.

This recusal raise an obvious question: why grant this case which would be decided by an eight-member Court? The Court has been deluged by petitions seeking to overrule Chevron. Maybe there are specific rationales to favor this petition. Paul Clement, super lawyer, is counsel of record. And perhaps Clement highlighted the second question presented in an artful way, that gives the Court space to operate:

Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

Moreover, this case has "good facts." Modest fisherman were required to pay the salaries of inspectors on their small boats. I love this quote from the cert petition:

The framing generation was vexed enough by being forced to quarter British soldiers, see U.S. Const. amend. III, but not even the British forced the unlucky homeowner to personally pay the redcoat's salary.

Perhaps these confluence of facts caused the Justices to grant this particular petition, knowing that Jackson was recused. Or, perhaps, the Justices who voted to grant did not care that Jackson would be excused. If the latter analysis is true, then the concerns in the Statement of Ethics Principles and Practices rings hollow. The Justices could have granted any other case calling to overrule Chevron and cribbed Clement's question presented. But they chose this case, where it will be very hard to count to five to keep Chevron in its current form.