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September 03, 2010


Sidney Gendin

If the fact that a Supreme Court Justice has revealed how he will vote because of some decision he participated in while in his former life or because he argued in behalf of of one side or the other while serving as Solicitor General is a good reason for recusing oneself, then every member of the Court should recuse himself from every future case on the grounds that every case will closely resemble previous cases on which he voted and perhaps authored an opinion. Surely, we know how Clarence Thomas and Tony Scalia will vote on future abortion cases. In any case, it really doesn't matter that we know how a judge will vote so long as the vote has a rationale.


Then wouldn't that suggest that an EIGHT justice Court would be better than seven as it increases the odds that four justices can be found to affirm especially since a 4-3 court and a 4-4 court render the same result? Finding 4 out of 8 is a lower bar to cross than 4 out of 7.


It's actually more advantageous to the petitioner to have the case decided by seven justices than eight: a petitioner needs only four justices to win with a seven-justice court, but the recused justice on an eight-justice court is indistinguishable from a vote for the respondents, because a 4-4 tie is an affirmance.

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