U.S. Supreme Court

SCOTUS justices in 'ticklish spot' in recusal case

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A refusal to recuse by Pennsylvania’s former chief justice is calling attention to the U.S. Supreme Court’s own recusal practices.

Death-row inmate Terrance Williams contends in a case accepted by the U.S. Supreme Court that his constitutional rights were violated when Pennsylvania’s then-chief justice, Ronald Castille, participated in a case upholding Williams’ conviction. Castille had approved the capital prosecution when he was district attorney. (An ABA amicus brief supports a new sentencing hearing for Williams.)

Pennsylvania’s brief opposing certiorari (PDF) lists Castille’s recusal decisions in which he cites the example of U.S. Supreme Court justices. According to a New York Times Sidebar column, the case “puts the justices in a ticklish spot, as the best arguments against recusal are grounded in their own practices.”

The brief notes that then-Justice William H. Rehnquist, before he became chief justice, determined that his former high-level position in the U.S. Justice Department didn’t require his recusal in a case involving a defendant the department had investigated and prosecuted. The court ruled 5-4 in the case, Laird v. Tatum, that there was no justiciable controversy in the challenge to Army surveillance of political activity.

Rehnquist said in a statement that he didn’t need to recuse in Laird v. Tatum, though he had publicly expressed his understanding on the constitutionality of government surveillance before becoming a justice.

Pennsylvania’s brief also cites cases in which Castille justified his refusal to recuse with a reference to Justice Antonin Scalia, who refused to recuse himself in a case involving Vice President Dick Cheney’s energy task force, even though the two men had gone duck hunting together.

Castille told the New York Times that U.S. Supreme Court justices took the right approach by making individual determinations whether recusal was warranted. “We leave it up to the individual conscience of the justice,” he said.

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