Sitting One Out: Strategic Recusal on the Supreme Court

Abstract

It takes five votes to decide a case before the Supreme Court. But what has seemingly escaped broad attention is that it actually requires six Justices to move cases forward — because of the Supreme Court’s statutorily defined quorum requirement. As a consequence, if four Justices cannot for some reason hear a case, then the Supreme Court too is powerless to hear it.

In this Article, I provide the first comprehensive analysis of how a four-Justice minority can and should utilize the quorum requirement — which I term “sitting out.” As a matter of how the law operates, I first show that, despite facing an oppositional five-Justice majority, under the right conditions a four-Justice minority can effectively sit out to significantly improve the chances of obtaining a favorable result. At best, the four-Justice minority can ensure a favorable result in the lower courts remains in force. And even if unsuccessful in stopping an unfavorable decision, the four-Justice minority can deny that decision the imprimatur of the Supreme Court.

As a normative matter, I contend that sitting out has the potential to cause grave harm to our judicial and government institutions, and thus set out sufficient conditions for its use: In cases involving a fundamental right and grave harm that would impact the character and identity of the nation, where there is a significant chance that the Supreme Court will render an obviously incorrect decision and sitting out could probabilistically halt that decision, a four-Justice minority would be plausibly justified in sitting out. Finally, in support of this sufficiency framework, I proffer two hypothetical examples: opposing race-based internment and opposing election manipulation and theft.