The Practical Implications of Recusal of Supreme Court Justices: A Response to Professor Swisher

Steven M. Klepper

In his recent Maryland Law Review article, Professor Keith Swisher examines the problems of contemporary judicial recusal theory and offers valuable insight on how to solve those problems. His doctrinal analysis covers all American judges, state and federal. Here, I will examine the practical aspects of a discrete sub issue, the recusal of United States Supreme Court Justices. A Justice's constitutional duty to decide cases is a barrier to recusal in cases where the Justice sees no conflict, but where the public might reasonably perceive a disqualifying conflict. Because a four-to-four deadlock results in affirmance of the judgment below, the act of recusal is effectively a vote to affirm. Building on recent articles advocating for designation of retired Justices to sit in place of recused Justices, I will suggest how to improve such proposals and examine some collateral benefits of such designation.