No, Justices Ginsburg and Sotomayor Do Not Need to Recuse

The Christian right has been arguing for months that Justices Ginsburg and Sotomayor should recuse themselves from the marriage cases that will be heard next week. Bill O’Reilly has now grabbed ahold of that argument and repeated it on his show. Ian Millhiser explains why this is wrong:

“These ladies have to recuse themselves,” an indignant Bill O’Reilly proclaimed on his Fox News show Tuesday night. “I’m shocked they haven’t done it already.”

The “ladies” O’Reilly was referring to are Justices Ruth Bader Ginsburg and Elena Kagan, both of whom have officiated same-sex weddings in the past. O’Reilly wants these two justices to remove themselves from a group of pending cases challenging anti-gay marriage discrimination. In the unlikely event that Ginsburg and Kagan heed O’Reilly’s call; that would give the justices who dissented in the Court’s 2013 decision striking down such discrimination at the federal level a 4-3 majority — most likely changing the outcome of the case…

If the mere fact that a justice’s political views can be determined by their actions were a reason to remove that justice from a case, then Ginsburg and Kagan wouldn’t be the only justices who need to recuse from the marriage equality cases. Justice Antonin Scalia, with his rants about the “homosexual agenda,” hasn’t exactly been shy about his own views on gay rights. Scalia, however, like Ginsburg and Kagan, can rest assured that he is not required to recuse himself from these cases either.

I’ve long argued that recusal is and should be an extremely rare thing at the Supreme Court level. In lower courts, a recusal is no big deal, they simply assign the case to another judge. But that can’t be done at the Supreme Court, so recusal means risking a split decision. That’s why traditionally, the justices only recuse themselves when either they or a member of their immediate family have a stake in the outcome of the case, usually financial. And Millhiser is correct that the mere fact that we can easily predict how a justice will vote in a case is not cause for recusal.

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  • gwangung

    That’s why traditionally, the justices only recuse themselves when either they or a member of their immediate family have a stake in the outcome of the case, usually financial.

    I would think that someone’s spouse lobbying for one side in a case would count, but I guess that’s just me…

  • Chiroptera

    I think Scalia should recuse himself: since he’s the only person alive who truly understands the Constitution, I feel he may have an instinct toward over-protectiveness may lead to some bias on his part.

  • Modusoperandi



  • anubisprime

    It sounds more like a rather clumsy attempt to cast serious constitutional doubt on the possibility that the Supreme Court ratifies SSM.

    They hope to get the right wing xtian drooling media a to start pontificating and cheer leading the brain dead legions by suggesting any SCOTUS pronouncement will be flawed through the recuse technicality.

    They are trying to spook the Supreme justices is all…so good luck with that then.

    If the Supreme court do find for SSM by a majority then all the right wing bigots can run around like headless chickens squawking about the illegality of the finding because there was a technicality that the Justices deliberately ignored.

    Of course it will be that the ‘liberal’ bias in the supreme court that really hates Jesus so it was expected.

    It is a hastily cobbled band aid to their inevitable butt hurt, making mischief in the forlorn hope that other states will challenge and challenge and presumably ignore the law …if SSM is ratified that is…by citing flawed SCOTUS process.

    Seems the general defeat they are staring at has seeped through their perceptions and they are all about damage limitation.

    It is to be wondered which braniac of a preacher will proclaim that the jeebus fan club just did not pray hard enough and the devil took advantage by infiltrating SCOTUS with a false legal protocol?

    It will be a a cherry picked from now on…like Obama’s birth certificate it will be trundled out at every right wing jeebus fest meeting and rally till doomsday, cos they got fuck all else!

    How quick they are to abandon their traditional bullcrap used against SSM, they know it is not a winner, they can tell by the general reactions, that is so obvious, so now its character assassination of the likely pro-judges begins…that is the traditional xtian modus operandi.

  • karmacat

    I think the justices who voted for the Citizens united should be recused indefinitely for gross legal malpractice

  • D. C. Sessions

    Of course it will be that the ‘liberal’ bias in the supreme court that really hates Jesus so it was expected.

  • Pierce R. Butler

    All members of the Supreme Court who have officiated at heterosexual marriages should recuse themselves too.

  • notruescott

    Certainly all those who have entered into a heterosexual marriage should recuse themselves. Clearly a conflict of interest.

  • John Pieret


    Not only that, but because officiating at a same-sex marriage (in a jurisdiction as specifically allowed by Windsor), any justice who had officiated at an opposite-sex marriage would also have to recuse themselves. Opps! I’m willing to bet the entire Supreme Court has to recuse themselves now!

  • busterggi

    Are the married heterosexual judges going to recuse themselves? I mean, if they really believe their marriages are threatened then they should.