So the days are almost here. On Tuesday, the Supreme Court will hear oral argument in Hollingsworth v Perry, the Prop 8 case from California and on Wednesday, the Court will hear oral argument in U.S. v Windsor, the DOMA challenge. Anticipation is building and as of this past Thursday, 9pm, some hardy souls were already lining up outside the Supreme Court building to be first in line to witness these historic cases. We learned in 2012 BTW that there is a long tradition of paid line standing, paying someone to hold your spot outside of the Supreme Court.
A friend asked the other day about recusals in these two cases. Although there was speculation that Justice Kagan would recuse herself in the DOMA case, she has not and the full Court is expected to weigh in on both decisions. For those who are curious, there are no hard and fast rules about recusal; it is still up to the Justices themselves to decide. I found this very thorough and comprehensive article about the recusal question written by Alison Frankel of Thomson Reuters back in 2012. I agree with her commentators assessments that Justices should not have to recuse themselves based on past dissents. People do change their minds later, even if Scalia and his conservative brethern are not expected to do so in these gay rights cases.
The general guidelines the Justices seem to be following is that the biggest predictor of recusal is a financial conflict of interest, like you own stock in a company with business before the Court. The second biggest bet for recusal if you are personally related to one of the participants or law firms representing the case. Several justices have siblings or offspring that are lawyers or judges. Beyond that, it gets very fuzzy.
I believe that in the instance of the case about the Sierra Club suing then Vice President Dick Cheney, that the lawyer for the Sierra Club, Alan Morrison, was right to ask for Justice Scalia's recusal since it was known that Scalia and Cheney went duck hunting together. In that case, Scalia angrily turned down the request for his recusal. I was persuaded about the need for Scalia's recusal in that case by one of my undergraduate students in our class discussion. She, an avid hunter, used to go out with her father frequently. She explained that a lot of hunting is just sitting around and waiting for prey to come in sight. It's a bonding experience and you end up talking a lot with your fellow hunter she said. Given what she knew about hunting, her opinion was Scalia should have definitely recused himself. Her reason was, "With all that time sitting around with nothing to do, you have to talk about SOMETHING."