It seems like a no-brainer: When a sitting Supreme Court justice is presented with a case in which they have a personal stake in the outcome, they should recuse themselves. To do otherwise is to damage the credibility of the court as a neutral arbiter.

Yet when the constitutionality of the Affordable Care Act was presented to the court in 2012, neither justice Elena Kagan nor Clarence Thomas stepped aside in the face of calls for both to do so. And the court still stands today.

In Ethics and Accountability on the US Supreme Court, (Suny Press, 2018) professor of political science Robert Hume, Ph.D., explores recusals, a much discussed yet poorly understood phenomenon.

“We have a lot of political talk about recusals out there, but no empirical work to find out if any of this talk is based in reality,” he said.

“There is no formal public process for recusals, which means it’s very hard to get data. You can observe when justices withdrew from cases, but what you don’t know is all the cases where they could have withdrawn but chose not to.”

As part of his research, Hume reviewed ten years of financial disclosure reports submitted by justices, and he found that in cases where businesses and corporations are involved, the justices do recuse themselves when they stand to benefit from a decision.

On the other hand, Hume found that when a case is expected to be close, and every vote is possibly a pivotal one, justices are less likely to recuse themselves. The Affordable Care Act case is the perfect example. Kagan had been the solicitor general for President Obama when some of the legal arguments for the Affordable Care Act were first being developed, while Thomas’ wife Ginni Thomas was actively campaigning against Obamacare.

“The justices tend to be mysterious about the recusal process so they can have that kind of flexibility. They don’t want to find themselves down a member and risk dividing equally on a really important case like health care,” Hume said.

“They’ll say they have an obligation to follow the ethics rules, but they also have an obligation to decide the cases before them, and you can’t substitute for a Supreme Court justice.”

Hume traces an uptick in interest in recusals to 2004, when Antonin Scalia was criticized for participating in a case involving Vice President Dick Cheney, even as the two went duck hunting together. This was not a new phenomenon; Hume notes that as recently as 1963, Justice Byron White went skiing with attorney general Robert Kennedy while the court was considering two cases that involved Kennedy.

But the public’s blasé attitude toward this sort of fraternization was tested severely by Watergate, and today, Hume said hyper partisanship has made recusals game for political activists seeking to sway court decisions in their favor.

Fortunately, he said that case outcomes rarely change because of recusals, and even though the court operated with only eight justices last year, it rarely issued 4-4 rulings. Justices, it turns out, make extra efforts behind the scenes and find consensus, because the courts’ legitimacy rests on its ability to reach decisions.

“The most consistent trend you find when a justice recuses themself is not that a case outcome changes, but that the tone of a majority opinion will change. A majority opinion will become somewhat more conservative or somewhat more liberal if certain justices sit out,” he said.

“That matters because it affects what the scope of the precedent is, but the bottom line tends to be the same, and the impact is relatively modest.”

Related Post: The U.S. Supreme Court: What Now?

Full transcript below

Patrick Verel: This is Patrick Verel and today, I am talking with Robert Hume, a professor of Political Science at Fordham and the Chair of the Political Science department. Now let’s start with the most recent development, the addition of Neil Gorsuch to the Supreme Court. How does this change the court with regards to upcoming cases?

Robert Hume: My first take on the Gorsuch appointment is that it probably wouldn’t change things all that much because Scalia was a fairly conservative judge and Gorsuch is also a fairly conservative judge. But Gorsuch is also a young judge. And to be a 40-something conservative in 2017, is different from what it would have been to have been a conservative in the 1980s, when Scalia was appointed. He’s unquestionably conservative, but I wonder if he’s gonna have the same desire to push back on social issues like same-sex marriage for example, possibly abortion, affirmative action. Obviously he’s more conservative of a candidate than we would have gotten if Garland had been put on the Supreme Court. So I think for people who are hoping that the Supreme Court would more in a more liberal direction, there’s bound to be a lot of disappointment.

But, Gorsuch is unquestionably a legal a professional. He’s unquestionably qualified, and he’s also young. I think conservatives look to his youth as a sign on influence in the years to come and that’s undoubtedly true. I think where liberals can take a little bit of solace in his youth is the fact that because he’s young, he might actually prove to be more liberal on certain social issues than conservatives might expect.

Patrick Verel: What do you think are going to be some of the more consequential cases that the court is going to decide in the next term?

Robert Hume: Well, I’m very interested to see what happens with religious freedom. What’s been difficult in terms of watching the Court this term, is the Court has taken few cases than usual, because it was short staffed and there was the concern that they might divide evenly. And the cases that they did take, most of those Gorsuch would not have participated in. The one in which he did participate, involved the Trinity Lutheran Church. This was a church that wanted to improve its playground. And ordinarily, if the Trinity Lutheran Church had been any other organization, they would have qualified to receive state financing for these materials. But because they were church, because it was a religious group, the state was concerned that there might be an establishment clause violation, and so they denied the school the use of those funds. So now it’s before the Court and the Justices need to determine whether this is appropriate, how accommodating they want to be towards religious groups. And so, I think Gorsuch’s vote on that might be instructive.

Patrick Verel: The Courts played a key role in stopping President Trump’s travel ban. Do you see the Supreme Court actually going along with it if it’s brought to the Court? Can you see other areas where the Court might end up going head to head with Trump?

Robert Hume: Well, we’re only six months into the Trump presidency, so if we already have a major Constitutional challenge at this point, I have no doubt that this is the first of many Constitutional challenges to come. But on this one in particular, not only do I think Trump might win, but I think he has a good point, depending on how the case presents itself. And that’s because, when the Fourth Circuit struck down the travel ban, they did so on the basis of statements that Trump had made as a candidate and there’s a disagreement among judges and among legal experts, about what evidence is appropriate to consider when you’re looking at intent.

Should you look at the law as it was written? So should you look at the travel ban as it actually was written? Or should you look at the intentions of the politicians who wrote it? And if you look at the intentions of the politicians, should you look at their intentions at the time they wrote it or should you look back further in time? Many would say that if you’re not going to stick to the plain text of the travel ban, that it might be appropriate to look at the intention at the time of enactment, but the campaign statements are off the table. Because people can change their minds. What people said at one time might not reflect their intent at the time that they actually enacted the law. I think Trump could make a very winnable argument that what he said as a candidate is irrelevant to the law that was enacted because the law, on its face, is neutral with regards to religion.

If the case comes before the sitting Justices and it’s presented in this way, I think it’s very winnable for him. And then I don’t know that Trump, on this issue, would be wrong either because down the line, whether you’re a Trump supporter or not, I wonder how much we want to hold politicians to statements that they make during their campaigns. I think there’s a good argument for sticking to the law as it’s written.

Patrick Verel: He made the comments about it being a travel ban, even as the president though. Not just as a candidate.

Robert Hume: Well that’s true. I mean, it’s true that what Trump is saying has changed. He’s toned down this explicitly religious, so a travel ban perse might not be problematic. I mean, it is a travel ban. It’s whether the intention is to discriminate on the basis of religion.

Patrick Verel: Last time we talked, we talked about the replacement for Scalia, and you told me the bigger story would be when Justice Kennedy decides to step down.

Robert Hume: I thought for a while that there’s a good chance that Anthony Kennedy, who’s the swing vote on the Supreme Court, could retire any time now. He could choose to retire this term, so it could be this June. For him, the timing could be quite good. He votes in a conservative direction probably more often than not, so he’d still be very comfortable with a conservative reappointing him. But, I think, the appointment of Neil Gorsuch also has the possibility to send some signals to Kennedy that it’s a safe time to retire. Gorsuch was one of Kennedy’s clerks and I even wonder if the appointment of Gorsuch was a signal to Kennedy, from the President, to say “Look, the Supreme Court’s in safe hands.”

“Each of you has been selected for membership because you represent the very best of our majors,” said Robert J. Hume, Ph.D., the Associate Chair for Undergraduate Studies (Political Science), in his remarks.

“We have enjoyed having you in the classroom, and we think that you should be commended for your commitment to scholarship and your high level of achievement.”
This year’s inductees were, from Fordham College Rose Hill: Alan Abraham, Alyssa Barnard, Roger Cappucci, Kathryn Cataldo, Clara Ennist, Brian Gibbons, Sarah Kelleher, Martha Lauer, Katherine McCabe, Caitlin Meyer, Stephen Moccia, Erika Pedersen, John Polizzi, Andrew Roddin, Gregory Scaduto, and John Scott.Membership in Pi Sigma Alpha is offered to undergraduates in the top third of their class who have completed at least one-half of the credits required for the baccalaureate degree.  Fordham’s chapter of Pi Sigma Alpha, Delta Zeta, restricts membership to graduating seniors.

Melissa Labonte, Hillary Fisk, Caitlin Meyer, Sarah Kelleher,
Diana Popstefanova, Brendan Foo, Katherine McCabe, Alyssa Barnard,
Roger Cappucci, Stephen Moccia, Robert J. Hume

From Fordham College Lincoln Center: Yuliya Aksakalova, Aileen Almonte, Amanda Angri, Ines Dawson, Hillary Fisk, Brendan Foo, Katherine Fotinos, Ryan O’Toole, Diana Popstefanova, Tamanna Rubya, Heidi Schneider, Judy Sirykissoon, and Kathleen Zanazzi.From Fordham College of Professional and Continuing Studies: Ayca Bahce.—Patrick Verel

By Robert J. Hume, Ph.D.

The U.S. Supreme Court began its term in October, and the year promises to be an exciting one. Here is a list of 10 Supreme Court cases that may be making headlines:

1. Health and Human Services v. Florida.
No upcoming case is bigger than healthcare. The lower courts are divided on the constitutionality of requiring Americans to buy health insurance. Some courts have ruled that the mandate is a valid exercise of the commerce power, but others have declared it unconstitutional. Expect a landmark ruling in the spring.
 

2. Perry v. Brown. The constitutionality of California’s same-sex marriage ban may be headed to the justices in the near future. An appeals court in California is poised to strike down Proposition 8 pending clarification of a technical question by a state court. The justices would then have to consider whether same-sex marriage is protected by the 14th Amendment.

3. Arizona v. USA. Arizona’s tough new immigration law encountered a setback last spring when a federal appeals court ruled that the law interfered with the federal government’s own immigration policies. Among the challenges is whether the state police can question individuals about their immigration status after being detained for unrelated offenses.

4. Hosanna-Tabor Church v. Equal Employment Opportunity Commission.
Do anti-discrimination laws apply to the employment practices of religious organizations? The question is complicated because the federal government usually does not interfere with the internal practices of religious organizations. Otherwise the Catholic Church might get into trouble for refusing to hire women clergy.

5. Florence v. Board of Chosen Freeholders. Are strip searches justified for prisoners who have been detained for minor offenses? The justices must consider how much discretion corrections officers should have. Civil libertarians maintain that officers must have reasonable suspicion that people are carrying weapons or contraband before invading their privacy.

6. FCC v. Fox Television Stations. Are the Federal Communication Commission’s broadcast decency standards too vague to be constitutional? Fox and ABC are in trouble for broadcasting nudity on NYPD Blue (ABC) and expletives uttered by Cher and Nicole Richie on the Billboard Music Awards (Fox). The stations contend that it is unfair to penalize broadcasters without clearer guidelines.

7. U.S. v. Jones. Do the police need a warrant before placing a GPS on a car? Antoine Jones may have been guilty of selling drugs, but the justices need to consider how much discretion police officers should have in using new technologies to observe and track citizens.

8. Golan v. Holder. Can Congress take creative works out of the public domain? Congress would like to restore the expired copyrights on a number of works, but arts organizations claim that the move will have a serious impact on their ability to perform classic pieces like “Peter and the Wolf.”

9. M.B.Z. v. Clinton. Who has the authority to recognize Jerusalem as the capital of Israel? Congress has declared that Jerusalem is the capital, but the president would like to keep the question open for diplomatic purposes. At stake: Who has the power to direct our foreign policy?

10. Howes v. Fields. Must police officers give Miranda warnings to prisoners who are suspected of new, unrelated crimes? Some say that suspects must be reminded of their rights every time they are accused of new offenses. Others object to what they see as the coddling of convicted criminals.

Hume was one of only four winners in the professional studies category, out of 42 entries from 16 Jesuit institutions. The awards are given annually by the Association of Jesuit Colleges and Universities, and the Alpha Sigma Nu Honor Society.

“For legal scholars and politicians who are interested in the ‘art of the possible,’ and ordinary citizens who care about persuasive writing, this book might very well be considered required reading,” said one of the judges, in part.

“I am thrilled to win a national book award,” said Hume, “but I take special pride in being recognized by a Jesuit honor society at the national level.”

Hume is a graduate of the College of the Holy Cross. He received his M.A. and Ph.D. from the University of Virginia in 2003, and came to Fordham in 2005. His teaching and research interests are in the areas of constitutional law, the judicial process, and public administration, with particular emphasis on the implementation of court decisions.

— Syd Steinhardt

Are There Too Many Judges on the Supreme Court?

Posted by Robert J. Hume
I want to thank Professor Hendler for his warm welcome and the invitation to post on this blog. It really is an exciting time to be studying the Supreme Court.

I want to elaborate on a few points from my San Francisco Chronicle article, which Professor Hendler posted below. As a political scientist, my primary interest is not so much in who President Obama should be appointing to the Supreme Court, but in what influence different types of nominees are likely to have on the Court.

For example, right now we have an unusual circumstance in which all nine Supreme Court justices (including Justice Stevens) was a sitting federal judge at the time of appointment. As a political scientist, I want to know what happens (if anything) when there is so little diversity in the professional qualifications of the justices. Would it matter if President Obama appointed another sitting federal judge, instead of someone from the political branches of government? In previous decades, presidents used to seriously consider governors, senators, and even former presidents for the Court. Now it has become much less common.

For the rest of the entry, see: “Are There Too Many Judges on the Supreme Court?“