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Tuesday, June 04, 2024

Partial Recusals

Much of the recent debate about judicial recusals (specifically, Justice Alito) has a binary quality. Either the judge recuses or does not. There is no third way. I wonder if that's part of the problem. Consider some possible alternatives:

  1. Early in the Supreme Court's history, Justices who recused would sometimes issue a statement about the merits of the case. In other words, "I'm not voting on this case, but here's what I think about the issues." Is that an advisory opinion? Probably, but maybe no more so than a statement about a certiorari petition that is denied.
  2. You could also imagine "I will recuse if and only if my vote matters."
  3. I will only vote on the case. I will not write an opinion. 

Posted by Gerard Magliocca on June 4, 2024 at 08:27 AM | Permalink


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