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Sometimes a Judge Has to Step Aside

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Remember when Justice Antonin Scalia refused to recuse himself from a case involving then-Vice President Dick Cheney, even though they’d just been on a duck-hunting trip together? That episode yielded a priceless Scalia memorandum-opinion in which he declared, among other things, that he’d never been in the same blind with Cheney on the trip. But the main take-away from the episode was that Scalia -- and no one else -- got to decide whether he should be recused. On such matters, the justices’ own decisions are final.

Not so for lower courts. The U.S. Supreme Court heard arguments Monday about whether a Pennsylvania Supreme Court justice, now retired, should’ve recused himself in a death-penalty decision. The twist is that the justice, Ronald Castille, had approved the decision to seek the death penalty in the exact same case while he was district attorney of Philadelphia. The decision had come 30 years before the case reached the state supreme court, and Castille’s vote wasn’t necessary for the court to reach its outcome in sustaining the conviction.

Should the court say that Castille ought to have recused himself? And if so, what should the U.S. Supreme Court do now about the convicted murderer? You might think the answers are an obvious yes to the first question and, to the second question, that the death penalty should be rescinded. But neither of these questions is as easy as it may seem. A better answer requires thinking a little bit about why judicial recusal is necessary -- and what to do when the principles have been violated.

The basic idea underlying recusal is that, in the words of the common law, “no man should be a judge in his own cause.” The principle has been recognized at least since 1610, when the great English judge Edward Coke refused to apply an act of Parliament under which the censors of the College of Physicians in London could try and fine physicians for practicing without a license -- then keep the proceeds.

The decision, known as “Dr. Bonham’s Case,” relied on the principle that the censors couldn’t simultaneously be judges and parties to the case, with a financial stake to be gained. In English common law there was no written constitution embodying the principle. But Coke thought it was so fundamental that interpreting the statute otherwise would’ve been “against common right and reason,” which justified judging the law to be “void.”

In the U.S., the recusal principle is embodied in the due process clause of the Constitution. In 2009, the Supreme Court affirmed that there’s a fundamental constitutional right not to have your case decided by a judge with a financial interest in the case.

But the due process right sometimes extends beyond such cases. In 1955, the Supreme Court held that a judge who’d sat as a one-man grand jury could not then try the case of people implicated by his investigation. The judge had nothing personal to gain, but the court said he wouldn’t be able to “free himself from the influence” of what he’d done and learned before. The court said even if its rule would sometimes sweep up judges who were trying their best to be fair, that didn’t matter: “Justice must satisfy the appearance of justice.”

Does this constitutional precedent cover the Pennsylvania Supreme Court judge? Arguably it should: As district attorney, he was ultimately responsible for charging the defendant and deciding to seek the death penalty, so he may have had specialized knowledge of the case in the manner of the judge who sat as a one-man grand jury.

The Supreme Court might very well draw this analogy, which would make the decision in this case a narrow one applying the 1955 precedent. But that would leave the hard question of what to do about the Pennsylvania court’s death-penalty decision.

If Castille hadn’t voted, the court would still have upheld the capital sentence. It could be argued that his presence in the deliberations tainted the result. Many judges strongly believe that their deliberations with one another matter. That would militate for the U.S. Supreme Court’s voiding the sentence and sending the case back to the state.

In the real world, the Pennsylvania court would probably uphold the sentence again. It seems unreasonable to take the decision away from the court altogether on the theory that they’re permanently tainted: Courts hear issues on remand all the time, and are expected to consider the issues afresh.

But it would be wise of the Pennsylvania court to void the sentence in the interests of what the 1955 Supreme Court called “the appearance of justice.” The state shouldn’t take someone’s life unless all the procedural requirements have been satisfied. Maybe not even then.

  1. Scalia dissented. He quoted the Talmudic maxim about the Torah, “Turn it over, and turn it over, for all is therein.” Then he explained that what was true of Scripture wasn’t true of the Constitution: “Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not.” You’ve got to miss the man, even if he was almost always wrong.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net