The Chief and Microsoft

As expected, Chief Justice John Roberts, Jr. stood up and left the Supreme Court chamber at the beginning of oral arguments Wednesday in the complex patent case Microsoft v. AT&T. According to his most recent financial disclosure form, Roberts owns between $100,001 and $250,000 worth of Microsoft stock, a clear trigger for recusal. (For more on recent recusal decisions by Roberts and other justices, see the Legal Times feature Recusal Report). With Roberts out, Justice John Paul Stevens presided over the oral argument — which led to a minor slip-up by former solicitor general Ted Olson, arguing for Microsoft. When Olson, a Gibson, Dunn & Crutcher partner, rose for his rebuttal, he addressed Stevens as "Justice Scalia," which got a hearty laugh from Stevens. Olson recovered quickly, explaining that he was focused on answering a point Scalia had made earlier.

Comments

[Tony Mauro]

Sorry for this belated reply. The situation you describe happens from time to time when a justice recuses and the rest of the Court is tied 4-4. In such a case, the Court by longstanding tradition issues a judgment affirming the lower court decision and announcing the fact that it was equally divided. So the winner in the court below wins the case, and it's over. But also by tradition, the affirmance does not carry any weight as precedent in other cases.

[Anon]

Forgive this simpleton's question, but when a justice recuses him/herself from a case, doesn't it result in an even number of votes? What happens when a vote ends up 3-3? Who then is the decider[sic]? Does the presiding judge have the tiebraker? Katherine Harris?

[Anon]

Forgive this simpleton's question, but if a justice recuses himself/herself from a case, doesn't this leave an even number of total votes? Should a decision be 3-3, who the ultimate decider [sic]? The presiding judge?