Louis J. Virelli III (Stetson University College of Law) has posted The Unconstitutionality of Supreme Court Recusal Standards on SSRN. Here is the abstract:
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Supreme Court recusal is one of the most timely and hotly contested issues in American law. Recent debate over when justices should be precluded from deciding certain cases has included public calls for the exclusion of Justices Thomas and Kagan from any future cases addressing the constitutionality of the controversial Affordable Care Act, the congressional testimony of two sitting justices, a letter from over 130 law professors successfully prodding Congress to introduce a new Supreme Court recusal reform bill, and numerous editorials in national print and electronic media outlets. Among the wide variety of voices in the discussion, a singular theme has emerged - more rigorous congressional regulation of Supreme Court recusal practice is needed to protect the integrity and legitimacy of the Court.
This discussion, however, misses the point. Lost in the impassioned debate about when justices should recuse themselves is a far more important and fundamental constitutional question: who should make that decision? This issue is at the core of our constitutional separation of powers and federalism principles, and should take center stage in the debate over Supreme Court recusal. This Article is the first to comprehensively apply separation of powers principles to the question of Supreme Court recusal, and argues that the Constitution requires that the Supreme Court be the sole arbiter of its own recusal standards. This argument shifts the focus of the debate from an ineffectual and unrealistic congressional command model, based primarily on notions of judicial ethics, to a more fundamental constitutional inquiry into the proper exercise of legislative and judicial authority. While this Article represents a significant break from current orthodoxy, it is imperative to situate the Court’s recusal decisions within the proper normative framework. Understanding the unconstitutionality of Supreme Court recusal standards should yield a more useful and transparent dialogue about the Court’s recusal practices going forward.
