Recusal and the Rule of Law

Once again, thanks to those participants who have contributed to the discussion about judicial recusal. I would like to respond briefly to this topic and related matters involving “personal convictions about what the law ought to be.” Let me begin with recusal. I have mentioned before that recusal is a method for insuring that a judge who has a personal stake in a case does not participate in its deliberations. I think this means that if the judge has a direct financial interest in the conclusion, is related to one of the parties, or, as a lawyer, previously directed some aspect of the case for one of the current litigants, he or she should seriously consider recusal.

But let us take another situation. What if a judge has not only been a “member” of the ACLU but was a principal for a number of years. Should this person, if appointed to the bench, recuse himself or herself if the ACLU is a party in a case before this judge? This is the situation in the Kentucky Ten Commandments case in which the ACLU (of Kentucky) was a principal. Justice Ginsburg, who had a long professional association with the ACLU, participated in the case. I do not recall if there was any substantive discussion about whether she should have recused herself, but she did not. And, I do not think that she should have recused herself on the grounds of her membership and former role in the ACLU. So, we come to Judge Roberts. Why should he recuse himself in a case that might involve an issue raising the legal status of abortion? I do not believe that the reason that his “personal convictions about what the law ought to be” is a real issue in determining the matter.

Quite frankly, how do we explain a court overruling itself otherwise? The law that was settled in Plessy was unsettled by Brown. The law that was settled in Bowers was unsettled in Lawrence. The law that was settled in National League of Cities was unsettled in Garcia. The law that was settled in Union Gas was unsettled in Seminole Tribe. Were the personal convictions about what the law ought to be involved in these cases? Perhaps another way of looking at these changes in the law might be this: did the new case provide an opportunity for enough justices to say that the Court was “wrong” in the past, and today in this new case we can rectify the “error of the past” notwithstanding the question of something being previously settled. If Plessy, Bowers, National League of Cities, and Union Gas were “wrong,” what principle in the rule of law insists that Roe was, is, and must always be right?

It may well be that in the eyes and minds of some honest intellectual debate is dismissed as “personal convictions about what the law ought to be.” But, when some reason and logic are permitted to overrule precedent but other reason and logic are viewed as “personal convictions about what the law ought to be,” we have a problem in the rule of law. I understand as well as the next person the political consequences of overruling precedent, but I hasten to add that what is it in Roe that makes this precedent and its progeny immune from the scrutiny of reason and logic, key components of the rule of law? The reason and logic that Judge Roberts may have to bring to the reexamination of any precedent, including Roe, are not grounds for his recusal if the reason and logic of the other members of the Court are not subject to the same examination. If Judge Roberts is a virtuous man, and I think he is, what counts is the quality of his reason and his logic. The related pastoral issues which may sooner or later be involved are for Judge Roberts, his priest, and his bishop to address.  RJA sj