The Reluctant Recusants: Two Parables of Supreme Judicial Disqualification

Green Bag, Vol. 10, No. 1, pp. 79-107, Autumn 2006

George Mason Law & Economics Research Paper No. 06-51

30 Pages Posted: 17 Nov 2006

See all articles by Ross E. Davies

Ross E. Davies

George Mason University - Antonin Scalia Law School, Faculty; The Green Bag

Abstract

It is a recurring irony of judicial recusal - a mechanism meant to reduce real and apparent bias in adjudication - that it inspires strikingly partial arguments by both its proponents and its opponents in particular cases or controversies. This partiality is driven only partly by the differences that underlie all legal disputes, differences of interpretation, opinion, expertise, and knowledge of the facts. It is also driven by direct competition for the levers of judicial power. Recusal is, after all, the only lawful way to remove an important vote from an important case - other than an impossibly speedy impeachment in the House and conviction in the Senate. This is an appealing or frightening prospect (depending on one's position) in a close case, and thus worth fighting for or against (again, depending on one's position). But voting - credibly impartial voting - is the only power a judge has, making it well worth defending. So, the stakes are high and the associated incentives are straightforward and potent. Two examples involving Supreme Court Justices and their critics illustrate the phenomenon.

Keywords: Supreme Court, recuse, recusal, disqualify, disqualification, ethics, judges, Senate, Congress, NAACP, impeach, impeachment, justice

JEL Classification: H11, H56

Suggested Citation

Davies, Ross E., The Reluctant Recusants: Two Parables of Supreme Judicial Disqualification. Green Bag, Vol. 10, No. 1, pp. 79-107, Autumn 2006; George Mason Law & Economics Research Paper No. 06-51. Available at SSRN: https://ssrn.com/abstract=945552

Ross E. Davies (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

The Green Bag ( email )

6600 Barnaby St., NW
Washington, DC 20015
United States

HOME PAGE: http://www.greenbag.org

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