How Often Does A Recusal Result In An Equally Divided Court?
UPDATE, 3/7 at 2:45 pm: Ryan Black of Washington University in St. Louis (and a previous “Ask the Author” guest) let us know about a paper he co-authored with Lee Epstein of Northwestern University called “Recusals and the ‘Problem’ of an Equally Divided Supreme Court,” available here. Their paper focuses on a slightly different question than the one addressed in this post – namely, it looks only at the effect of “discretionary” recusals – but provides an abundance of additional details and figures that may be of interest.
With the Court’s recent ruling in Warner-Lambert affirming the judgment by an equally divided vote, it marked the second time this term that a recusal – of Chief Justice Roberts in this case – had prevented the Justices from issuing an opinion on the merits. (The first instance was the 4-4 split in Board of Education of New York v. Tom F, following the recusal of Justice Kennedy.) That sent our crack statistical team scrambling into action: when was the last time this happened twice in one term? And how often does it happen in general?
It turns out we didn’t have to go all that far back to find a term when the Court divided equally more than once: it happened in OT02, when Borden Ranch Partnership v. U.S. Army Corps of Engineers was affirmed without opinion and Justice Kennedy recused, and then again in Dow Chemical Co. v. Stephenson, with Justice Stevens recused. Before this Term, Dow Chemical was the last time any case was affirmed by an equally divided Court.
In fact, it’s odd that the Court has doubled up on such affirmances twice in the last five terms, because the Justices have mostly been able to avoid this circumstance of late: including the two most recent cases, it’s only happened 10 times in the last 18 years. Further, according to a search of U.S. Reports, it’s happened 45 times since 1970, which is around 1% of all cases. It occurred more frequently in the 1970s and ‘80s (17 and 18 times respectively) than it did in the ‘90s and ‘00s (6 and 4 times), but the Court also heard about twice as many cases per term back then. Despite some people’s concerns about what they perceive as increasingly frequent recusals by the Justices, on a percentage basis, the effect such recusals have had on the Court’s decisionmaking has been essentially consistent for the last 35-plus years. If anything, the issue occurs less often than it once did.
Stepping back, a few words about judicial recusal by way of background. There are two main reasons for recusal: personal (or familial) stake in a case, or previous experience with a case. The first is the most common, and this occurs when a Justice has stock in a company or when an immediate family member works for a company or law firm involved in a case. The second situation is confined (with rare exceptions) to the first few years of a Justice’s tenure, and this is where a recusal occurs because a justice has dealt with the case before in some capacity. It could be (as has happened in Chief Justice Roberts’s case) that his old law firm was involved in the matter and he was at the firm and involved directly or indirectly, or it could be that a Justice has seen a case already on the lower court he was elevated from and doesn’t believe he should get two bites at the apple, so to speak. This is the reason Chief Justice Roberts was recused in the case of Hamdan v. Rumsfeld, which he previously heard as a member of the US Court of Appeals for the District of Columbia Circuit.
Perhaps not surprisingly, it has historically been the recusal of a “swing” Justice, rather than that of a reliably liberal or conservative member of the Court, that has left the Court equally divided. For instance, the Court has never been evenly divided as a result of the recusal of Justice Scalia or Thomas, despite their nearly forty years of combined service. By contrast, the recusal of Justice O’Connor has left the Court equally divided six times; of Justice Kennedy three times; and of Justice Powell – the swing Justice of the Burger Court – a whopping thirteen times in only fifteen years on the bench.
UPDATE 3/7, 3:00 pm: Commenter Scott Nelson makes an excellent point below: “Eight of the affirmances by equally divided Court that resulted from the non-participation of Justice Powell came in the October 1984 Term, when Justice Powell was undergoing treatment for cancer and was unable to participate in cases heard during (I believe) the January, February and March sittings of the Court.” Indeed, this article from Time Magazine in 1985 explains that Justice Powell missed 56 arguments that term due to his illness. As Time notes, it’s not entirely clear why some of those split decisions were reargued so they could be decided with Justice Powell on the Court while others were simply disposed of with a non-precedential affirmance.
Of course, the retirement of a Justice may also lead to equally divided votes when the Court is forced to operate with only eight members, but the Justices have done well to avoid this circumstance. For instance, with the Court deadlocked upon the departure of Justice O’Connor in OT05, the Court reargued three cases with Justice Alito on the Court rather than affirm the decisions by an equally divided vote (those cases were Garcetti v. Ceballos, Kansas v. Marsh, and Hudson v. Michigan; see here for more on those cases). Thus, a retirement has not resulted in an equally divided Court since the decision in Hartigan v. Zbaraz, a case argued and decided after the retirement of Justice Powell in the summer of 1987, but before Justice Kennedy was able to replace him in February of 1988.
In the case of a retired justice, how does Court decide whether to carry the case over for reargument rather than immediately affirm by an equally divided court?
Comment by Richard McKewen — March 6, 2008 @ 2:26 pm
Is the article correct in saying that personal or familial recusal will occur when a Justice’s “immediate family member works for a company or law firm involved in a case”? I believe I have read that Justice Scalia has, and Chief Justice Rehnquist had, sons employed with large D.C. firms, but that these Justices could sit on matters brought to the Court by those firms so long as their sons were not personally working on that particular case. If this is true, then recusal would not be necessary merely because a Justice’s son, daughter, or other immediate family member was employed by a law firm bringing a case to the Court.
Comment by Eric Bravo — March 6, 2008 @ 4:49 pm
Why must a justice recuse if he previously heard the case on the Court of Appeals? I would think this situation arose frequently when the justices “rode circuit”. Did they recuse in those cases, too?
Comment by Marc Shepherd — March 7, 2008 @ 9:03 am
Richard-
In answer to your question, there don’t appear to be any rules regarding how to dispose of equally divided cases caused by a retirement, but the practice seems to depend on whether there is a replacement available to take up the case.
For instance, Justice O’Connor helped to avoid this situation when she made her decision two years ago to stay on until her replacement could be confirmed; she thus ensured that there would never be a time when only eight justices were on the Court. Hence, while there were those three aforementioned cases for which Justice O’Connor was on the Court at oral argument but the Court was unable to issue an opinion by the time she retired, Justice Alito was able to immediately step in.
Likewise, when Justice Marshall retired effective October 1, 1991 and Justice Thomas did not replace him until later that month, the cases in the October 1991 sitting were argued in front of an eight member Court. But, in that circumstance, the Court did choose to hold two closely divided cases and reargue them with Justice Thomas on the Court.
On the other hand, looking back at the situation in 1987 (when Justice Powell retired immediately in June of that year), for much of OT87, there genuinely were only eight members on the Court, and it was unclear when the ninth would be confirmed (indeed, Justice Kennedy did not take his commission until February of 1988). Perhaps that’s why the Court decided to issue an equally divided affirmance rather than wait for a ninth member to break the tie.
-Jason
Comment by Jason Harrow — March 7, 2008 @ 10:55 am
A historical note: Eight of the affirmances by equally divided Court that resulted from the non-participation of Justice Powell came in the October 1984 Term, when Justice Powell was undergoing treatment for cancer and was unable to participate in cases heard during (I believe) the January, February and March sittings of the Court. Thus, these 4-4 splits were not the result of recusal. Justice Powell’s inability to participate in literally dozens of argued cases during that one Term accounts in significant part for the disproportionate number of 4-4 decisions attributable to his nonparticipation during the course of his career. (Two 4-4 decisions that resulted from the January decision were reargued in April so he could participate, but this was apparently not thought feasible for the 4-4 splits in February and especially March, when most of them occurred.)
Comment by Scott Nelson — March 7, 2008 @ 12:40 pm
Perhaps we should view the ties that can result from an even-numbered Court as a good outcome. After all, why should one swing Justice establish the law for the entire nation? (The first Congress may have agreed; it established a Supreme Court consisting of 6 Justices.)
On a separate issue — the speculation about when and why Justices recuse themselves suggests that there should be more transparency in this area. Justices should be required, or at least strongly encouraged, to explain publicly why they have chosen to do so.
Comment by Amanda Frost — March 9, 2008 @ 3:16 pm
Eric,
If memory serves, Justice Scalia’s son Eugene was a member of Ted Olson’s firm when Bush v. Gore was argued, and Justice Scalia did not recuse himself, so I think your interpretation is correct here.
Comment by Patrick Wood — March 9, 2008 @ 6:04 pm
An interesting wrinkle on the above thread:
Justice William Douglas (who served 36 years, the most in Supreme Court history)suffered a stroke during his next-to-last term, the Fall 1974 Term.
He nonetheless continued to perform what Supreme Court duties he could (much as the late Chief Justice, when ill, reviewed oral argument tapes and transcripts when he could not sit for argument).
However, the other Justices became gravely concerned about his competence. They therefore entered into (a fact which was at the time not publicly revealed until years later, I believe) an “inter-office” agreement/pact that dictated that, in the event a case had already been argued (but not yet decided upon), where the vote was 4-4 (and thus Douglas’ vote would make the difference), the case would be put off until the following term.
No such cases were put off, as far as I know, and Douglas retired early into the next term (Fall 1975).
Comment by Daniel Lebovic — March 12, 2008 @ 9:49 pm
Does anyone know of a list of cases resulting in a 4-4 decision, due to recusal, illness, retirement or any other reason?
Comment by Barbara Traub — May 8, 2008 @ 2:25 pm