There’s a lot of talk right now about Justice Ginsburg’s recent comments about Trump and Heller, and whether they might require her to recuse herself from certain future cases. See, e.g., here and here. I don’t think so (see reasons below). But I thought I’d use this opportunity to make a prediction and to call attention to a new report saying the justices recused themselves 180 times this last term. That’s a lot of recusals.
During the last term, Justice Kagan recused herself the most (98 times), due entirely to her past work as Solicitor General. Presumably, Kagan’s recusals will drop to zero or near-zero over the next few years, as the cases she was involved in as SG work their way out of the system.
Justices Sotomayor and Breyer each had 17 recusals last term, for similarly unavoidable reasons. Like Kagan, Sotomayor was previously involved in cases due to her past work as a judge on the Second Circuit. And Breyer has a brother who is also a federal judge, so he recuses himself whenever his brother was involved in a case. Sotomayor’s recusals will presumably drop to zero or near-zero in a few years, like Kagan’s. But Breyer’s will likely remain somewhat constant.
The most surprising stat is Justice Alito, who recused himself 31 times. That’s the second-highest number of recusals, and 22 of them were due to Alito’s stock ownership—meaning two thirds of Alito’s recusals were entirely avoidable. (All he has to do is change the way he handles his investments.) Also noteworthy: Alito recused himself 5 times for undetermined reasons. This is particularly odd, given there was only one other recusal for undetermined reasons (by Breyer) in the entire term. Why is Alito staying out of these cases?
Interestingly, Ginsburg was the only justice who had zero recusals all term. And, for what it’s worth, I don’t think she’ll have to recuse herself anytime soon, or perhaps ever again. For starters, it’s highly unlikely there will be any litigation between Clinton and Trump (like Bush v. Gore), so her comments about Trump won’t get in the way. And it’s likewise unlikely that any case challenging Heller will make it to the Court before Ginsburg retires—which, I predict, will be by the end of the coming term (OT2016).
Yes, you read that right. I think Ginsburg’s free-flowing and revealing comments are a sign that she’s leaving soon, and thus no longer worried so much about political propriety. Ginsburg was appointed by President Bill Clinton, and she must be feeling fairly confident that Hillary Clinton will be elected to appoint her successor. I wouldn’t be surprised at all if Ginsburg announces her retirement right after the election in November—though, with all the hubbub over the Garland nomination, I think the safer bet says she’ll wait till the end of the term.