J’recuse!*

In a statement last month by all nine current members of the court that they said was meant to provide "clarity" to the public their ethics practices, the justices explained why individual jurists "rather than the Court" must decide recusal issues. 

"If the full Court or any subset of the Court were to review the recusal decisions of individual Justices, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate," they said in the statement.

This is a significant problem. The Court is right . If it decided who must recuse, in an instant it would become a purely political entity. Not that this isn’t the current problem of the court (and of lifetime appointments of young lawyers who really should be in practice or on lower benches long before they are considered for the high court). But the issue of recusal is a part of the problem which has to be solved because these problems will take several solutions. 

As the article notes,  the lower courts can assign alternate judges if need be, but the Supremes don’t have a deep bench. So Justices can’t easily step aside, lest the case be decided by an evenly divided Court, or by less than a majority even if the ruling is unanimous.

That’s due to the structure of the court. The Supreme Court is not structured like an appellate court with 30 judges or more; or district courts with multiple judges available to substitute on a case. But that structure is set by Congress, not the Constitution. So Congress can change it.

This isn’t a constitutional crisis, in other words . It’s something that can be solved by some creative and insightful thinking. Yeah, from Congress. The very kind of changes to the Supreme Court Congress has made in the past.

Yeah, it’s hopeless. Doable; but it won’t be done.

Although, the way things are going, we have to consider that anything is possible. And remember that necessity is the mother of invention.

Fixing the Court could easily become a necessity. Especially since the Court is working hard to destroy its legitimacy, and there may soon be no alternative but to subject the Court to an active DOJ investigation. That issue can be obviated by some resignations. But the problem would still exist, and along with changing the structure and size of the Court, we could imagine changing the requirements for the Court: age, experience, perhaps recognizing the advantages of elderly wisdom over youthful enthusiasm, and even cycling Justices into retirement to keep the Court from ossifying and Justices lingering on the bench and ruling from the bubble of too many years on that bench.

As I say, it’s time for some imagination and creative thinking.

*Yes, mock French. No better than that.