Messages from Ginni Thomas to Trump administration officials indicate she believes that the last election was stolen from the former president. This has brought calls that her husband Clarence Thomas recuse himself from any Supreme Court case that might involve that 2020 election.

I leave the merits of whether his recusal is appropriate to others or for another day. Instead, I have been struck by some of the commentary that says that Justice Thomas should refuse to recuse and refers to the well-known opinion (in certain nerd circles) when Antonin Scalia refused to recuse himself.

In that case, Vice-President Dick Cheney was a named party, and an opposing party moved that Scalia recuse himself because Cheney and Scalia for years had gone on a hunting vacation together. Before launching into the twenty pages defending his non-recusal decision, Scalia pointed out that the motion suggested that Scalia “resolve any doubts in favor of recusal.” Scalia responded: “That might be sound advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case.”

Of course, Scalia was right that a recusal on a lower court is different from one on the Supreme Court. Throughout the country, we generally have three levels of courts. The lowest is often called a trial court where a legal matter originates. The proceedings are presided over by a single judge, but there are other trial judges in the jurisdiction. If a judge steps aside, another trial judge gets the matter, and the legal matter proceeds in the same fashion as if there had been no recusal.

An intermediate appellate court sitting above the trial courts decides cases with panels of judges—three in the federal Courts of Appeals. These appeals courts, however, retain more than three judges. The panel to decide a case is drawn from the greater number. For example, the federal Second Circuit Court of Appeals has thirteen fully active judges, but normally only three decide a case. As Scalia indicated, if a judge assigned to a case is recused, then another appellate court judge steps in and the same sized panel still decides the case.

The Supreme Court is different. Nine justices decide a case and the Supreme Court has only nine justices. If a justice steps aside, the matter will be decided by the remaining justices, or if the justices split evenly, no decision is rendered. (A tie vote means the intermediate appellate court decision stands.) Scalia used the possibility of a four-four split as a justification to stay on the case, and it is now also cited as a reason why Clarence Thomas should not recuse himself.

While lower court judges may be expected to err on the side of recusal and step off a case when there is a reasonable chance that there is a conflict of interest or the perception of a conflict, Scalia’s approach was that a Supreme Court Justice should err on the side of non-recusal. More unfairness may result, and an increased perception of unfairness seems inevitable. The unavailability of a justice to replace a recused justice, however, is remediable, and reforms should be considered.

The Constitution neither defines the number of Supreme Court Justices nor does it define how many Justices should decide a case. It merely says: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Although the Constitution never expressly gives it the authority, Congress sets the size, which has varied from its original six until after the Civil War when it was set at nine, where it has stayed since. That number has seemed sacrosanct after FDR’s failed attempt to expand the Court in 1937.

Nine remains sacred because proposals to change the size seem partisan. Recent suggestions of enlarging the Court came because that body is firmly conservative and because Republican partisan activities insured a firm majority of rightist Justices. However, there are proposals that would lead to more than nine Justices that could make the Court appear, and perhaps be, less partisan. The reforms could lead to better Justices and make the nomination and approval process less partisan.

The core of the proposal is that each president gets to appoint a Supreme Court Justice every two years, say on the July 1 after the presidential term begins. Presidents would make another appointment every two years thereafter. Of course, since Justices can sit on the Supreme Court until death or resignation, the Court could have an increasing number of judges, which could become unwieldy if all of them decided each case. Instead, nine Justices would be picked at random from all the Supreme Court judges to hear a matter.

There are obvious advantages to this scheme. First, of course, there would be replacements for recused justices, and there would be no possibility of an equal split among the justices. The decision to recuse can then concentrate solely on conflicts of interests.

Another advantage is that the enlarged Court could take on more cases than it does now. If, for example, the Supreme Court had fourteen justices and nine decided each case, then the Court should be able to accept fifty percent more cases than it does now. Fewer Court of Appeals decisions, which are sometimes inconsistent from circuit to circuit, would stand as the result in a litigation. This would give more certainty, uniformity, and finality to the law than we have now.

Drawing nine from a broader roster of justices also would have the advantage of dampening lawyerly gamesmanship. Attorneys now try to predict how each of the nine justices might decide a particular issue and seek review only when they assess the Supreme Court lineup as favorable to their position. That gamesmanship was evident with Amy Coney Barrett’s ascension to the Court. Conservative legal organizations now see a solid Supreme Court majority favoring certain kinds of religious claims, Second Amendment expansion, and the limitation or elimination of the right to abortion and are seeking to get Supreme Court review of cases containing such issues before a Court they see as especially favorable to their viewpoints.

That lawyerly calculus would change, however, if the nine Justices who heard a case were drawn from a larger pool, and the attorneys seeking review did not know who those nine would be. The addition of a single Justice to the Court would not be the momentous event it now often is. I don’t know for certain what result this would have on Supreme Court decisions and the perceptions of those decisions, but perhaps there would be more public focus on the issues and less on the judges. That would be a good thing.

(concluded April 8)

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