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.