Recusal Refusal Cleverness

And we're (I'm) back. Because it's summer, because I need an occasional break from the Institutional First Amendment, and because Jason Paré asked so nicely about six months ago (he was the only one, but hey).

Also, something weird happened with the formatting of this blog shortly before I shut down operations. So past posts are a bizarre mishmash of topics and are often hard to read. I promise they didn't used to be like that, but I'm too lazy to fix it and nobody cares anyway, so let's move on. Today, something law-related.

I am pro...

John Roberts, specifically, for his excellent dissent in Caperton v. Massey, the decision of which was just announced today. The case is of greater interest to me than your everyday ho-hum SCOTUS decision because of its starring role on my Civil Procedure Exam, so that's why I'm talking about it. For some background on the case and its significance, get your learn on here. I don't have major beef with Kennedy's majority opinion; after all, any judge worth his salt would have immediately recused himself on the facts of this case. Practically, it becomes a choice of evils, and whether you agree with Kennedy or Roberts might depend on whether you're more uncomfortable with scenario (A) in which judges are allowed to adjudicate disputes in which they owe their current position, at least in part, to one of the litigants, or (B) in which litigants do everything they can to dig up potential appearances of bias (even where the judge is actually impartial) in order to stall litigation or get what they perceive to be a more favorable judge.

But it also has to do with whether you think that the Due Process Clause should cover "probability of bias" and not just situations where the judge has a clear financial interest. Roberts is more convincing here. He correctly notes the dangerously vague standards that have now become part of a Due Process analysis with the majority's opinion. He lists no fewer than forty different questions that will have to be determined by each lower court whenever any appearance of bias is claimed, and then, as if to highlight the absurdity of the vagueness, remarks that "these are just a few uncertainties that quickly come to mind." Biting, understated brilliance.

But I am anti...

John Roberts, generally, for his utter failure to live up to the "moderate" approach he promised during his confirmation hearings. The New Yorker's Jeffrey Toobin does a good job documenting Roberts' jurisprudence thus far. Basically, it gives some solid definition to that vague sense I had that our Chief Justice has brought a very clear ideological bent to his work. I guess it's not a big surprise, but I had high hopes, and if anything, he seems to be even more of an ideologue than his predecessor (Rehnquist), for whom I still harbor a grudging respect.

Antonin Scalia, more often than not, and most recently for his lazy little dissent in Caperton. I guess the brevity is explained by the fact that Roberts had voiced most of the arguments quite well, but Nino just couldn't resist getting one of his clever little digs in. This time, he quotes the Talmud and then remarks that "[d]ivinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not." Yeah, it's not bad, but it just smacks of trying too hard.