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Monday, October 28, 2024
The Supreme Court's Recusal Rules May Have Fatal Consequences
My new essay for The Hill explains the impact of the Supreme Court’s recusal rules on Richard Glossip’s capital case. Here is the gist:
Justice Gorsuch’s recusal may have doomed a man to death
by Steven Lubet
[Richard] Glossip’s case is now before the U.S. Supreme Court, where his fate may actually be determined by the incoherence of the court’s recusal rules.
Only eight justices were on the Supreme Court bench when Glossip’s case was called on Oct. 9. Justice Neil Gorsuch had recused himself months earlier before the Supreme Court granted Glossip’s petition for review.
Gorsuch is among the court’s most conservative members, but his absence may nonetheless doom Glossip’s appeal.
It takes five justices, however, to reverse a conviction; a 4-4 tie would leave the death sentence in force. Thus, Gorsuch’s recusal has the same effect as a negative vote. Even a small chance of winning his vote would have been a conceivable advantage for Glossip’s case.
Under Canon 3B(3), “the rule of necessity may override the rule of disqualification.”
How could the rule of necessity ever apply, if not in Glossip’s case? Can there be a worse result than the affirmance of the death penalty by an equally divided court?
You can read the full piece at The Hill.
Posted by Steve Lubet on October 28, 2024 at 12:03 PM | Permalink
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