Another Autumn Afternoon

Although likely just a temporary order, this does tell us that none of the reporting over this year has led Thomas to recuse himself in cases involving the 2020 election and efforts to overturn the presidential election results, despite his wife’s involvement in those efforts.

— Chris “Subscribe to Law Dork!” Geidner (@chrisgeidner) October 24, 2022

Thomas is the Justice over this circuit.

This order — temporary, administrative, or whatever you want to call it — is nonetheless a prime example of the problem with the current way that recusal is handled on the Supreme Court.

There is a federal recusal statute, but there's no real enforcement as to justices.

— Chris “Subscribe to Law Dork!” Geidner (@chrisgeidner) October 24, 2022

Yes, recusal on the high court sucks, because it is left to the individual Justice. Lower courts can be told what to do, but the Supreme Court privileges itself as equal to the Congress and the POTUS. Although the Court can tell Congress and POTUS what to do.

But this is an administrative stay, not a ruling. A ministerial act, not a judicial one.

Indeed, there are lots of recent examples of the Circuit Justice issuing such a temporary ruling and then the full Court *declining* to make it permanent.

Folks will surely overreact anyway, but this isn’t a big deal — yet.

— Steve Vladeck (@steve_vladeck) October 24, 2022

This simply gives the Court time to decide if there’s something here. Likely any other justice would do the same (Prof. Valeck notes the Yeshiva case Justice Sotomayor stayed, then joined the majority in rejecting the appeal.). If you think this is a BFD, get off the intertoobs and take a calming walk. Or your blood pressure meds. Whatever works for you.

Life’s too short to treat everything like an outrage.