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When the Supreme Court denied review in a little-noticed case involving the Republic of Croatia in October 2002, Croatia’s lawyer in the case remembers doing a double take when he saw the Court’s order. The order indicated that Justice Antonin Scalia had recused in Kahvedzic v. Republic of Croatia, No. 02-5917, and Tomislav Kuzmanovic was mystified. “I still have absolutely no idea why he did that,” says Kuzmanovic, a Milwaukee-based partner at Hinshaw & Culbertson, who represented Croatia. As far as he knew, nobody connected to the case, which involved a property dispute in Bosnia, had any connection to Scalia. Scalia did not explain his recusal — justices rarely do — but his motivation may have been revealed in a financial disclosure form he filed the following year: Scalia reported that he had been reimbursed by Croatia for a trip to meet Croatian judges in July 2002, just before the case came before the Court. The trip to Zagreb was one of 15 subsidized trips Scalia took that year. The appearance of conflict caused by the trip seems to have been Scalia’s logic then. But so far, Scalia has resisted the same rationale when it comes to his now-famous duck-hunting trip with Vice President Dick Cheney in January, shortly after the Court had agreed to take up a case that involves Cheney. The furor over Scalia’s trip with Cheney has cast a spotlight on the murky world of Supreme Court recusals, where justices decide to recuse — or not — without review by their fellow justices or by any other body. A Legal Times survey indicates wide disparity in the number of times justices recuse, from Justice Stephen Breyer recusing the most often (averaging 42 times per year) to Chief Justice William Rehnquist recusing the least (seven times per year). The attention on recusals is likely to continue because of a motion filed Feb. 24 by the Sierra Club, a party in the Cheney case. Asserting that Scalia “accepted a sizable gift from a party in a pending case” in the form of travel aboard Air Force Two for Scalia and his daughter to the Louisiana duck hunt, the motion asks Scalia to step aside in the Cheney case. Scalia has not responded, but in a Jan. 16 letter to the Los Angeles Times said flatly, “I do not think my impartiality could reasonably be questioned.” Scalia may or may not budge now that he has been formally asked to recuse, but even if he decides to stay in the case, the controversy may continue to sail into uncharted waters. The Sierra Club’s lawyer, veteran Supreme Court advocate Alan Morrison, says if Scalia does not recuse, he will ask the full court to review Scalia’s decision — a request that would bump up against the Court’s long-standing tradition of leaving recusal decisions to the justice in question, and no one else. “The whole Court has the power to consider it if it wants to,” says Morrison. “It cannot be that if, say, Scalia owned stock in a company involved in a case, but he refused to recuse, that the rest of the Court would have nothing to say.” One omen of how Morrison’s strategy will be received came as soon as the Sierra Club motion was filed. In keeping with the Court’s tradition on recusals, Supreme Court Clerk William Suter treated the filing as a suggestion to Scalia alone, not a motion to the entire Court — which means the other eight justices won’t even receive copies of it. Dozens of newspaper editorials have demanded that Scalia remove himself from the Cheney case and asked why justices’ recusal decisions are beyond review. Democratic lawmakers have urged the Court to establish standards and procedures for handling and accounting for recusals. The only answer so far from the Court was a frigid statement from Chief Justice Rehnquist that it was “ill-considered” for members of Congress to suggest when justices should recuse. When the controversy ultimately dies down, most Court-watchers think nothing will change, and the Court will continue in its unique status above review. Congress, which in 1980 mandated disciplinary councils for all the circuit courts, is traditionally reluctant to intrude on the Supreme Court’s prerogatives — even though Congress has passed laws dictating matters as fundamental as how many justices the Court should have and when the Court term begins. The Judicial Conference of the United States is equally reluctant to set policy for the Court. The conference’s code of conduct does not apply to the Supreme Court — though the Court has said it looks to the code for “guidance.” “Nobody wants to get on their bad side,” says Steven Lubet, a professor at Northwestern University School of Law. Congressional reluctance to pass laws regulating Supreme Court procedures is “unpersuasive,” he says. “I’m not saying there should be intrusion into their deliberations, but they should adopt a code of conduct. “There are a lot of laws Congress could pass” relating to the Court, Lubet asserts — including laws requiring the Court to explain recusals and list the votes on denials of certiorari. As it is now, says Lubet, without any transparency or explanation of the justices’ recusal decisions, “Only the former law clerks have inside information on why the justices recuse, and that’s not fair.” Former law clerks at the Court say the justices have a broad range of methods for determining when to recuse. Some resemble a law office’s system for detecting client conflicts, but others appear far less formal. Monroe Freedman, the judicial ethics expert at Hofstra University School of Law, has in the past described Scalia as a justice who “tries pretty hard” to recuse when appropriate. In 17-plus years on the Supreme Court bench, Scalia has recused 196 times. The most recent instance came in the Pledge of Allegiance case Elk Grove Unified School District v. Newdow, No. 02-1624. Michael Newdow, the California atheist who objected to the use of “under God” in the Pledge, filed a “suggestion of recusal” with Scalia citing a speech in which the justice indicated his views on the issue. In addition, Scalia routinely recuses in cases involving Tulane University, at whose summer law school programs he teaches. When Scalia first recused in a Tulane case in 1991, the dean at the time said Scalia himself had called to determine if the Tulane entity in the case also sponsored the law school program. Scalia will teach at Tulane’s program in Greece again this summer, and Rehnquist will teach at Tulane’s program in London. Scalia also consistently recused in Department of Labor cases in 2002 while his son Eugene was the department’s solicitor. The younger Scalia’s name often appeared on government briefs. With an average of 12 recusals per term since joining the Court in 1986, Scalia is outranked by several other justices, notably Justices Breyer and Sandra Day O’Connor. (The statistics in this article were drawn from a LexisNexis search of Supreme Court orders and opinions that tallied how many times each justice’s name appeared next to the words “took no part,” which is the Court’s parlance for recusals. Most recusals come at the first step in the Court’s review process, in cases where certiorari is denied.) Many of O’Connor’s 675 recusals since she joined the Court in 1981 resulted from her ownership of a small number of telecommunications stocks — which Morrison and others have suggested she should sell to avoid the recusals. As for Breyer, many of his 382 recusals, especially those that came in his first years after joining the Court in 1994, stemmed from his status as an investor in Lloyd’s of London. Even though he bought himself out of the relationship early in his tenure, the apparently lingering nature of his liability has led him to recuse in some reinsurance disputes that come to the Court. He still lists apparently related investments in Lloyds Bank International Ltd., reporting less than $15,000 in income from the institution on his 2003 financial form. Breyer also typically recuses in cases in which his brother Charles Breyer, a U.S. district judge in the Northern District of California, has ruled. Souter, who has few investments, nonetheless has had 418 recusals in more than 13 years on the Court. But all but 40 of those came in his first two years. The likely explanation, which also pertains to many of the recusals of other first-year justices: The cases were discussed at conference before Souter joined the Court, but ruled on after. Most of Justice Anthony Kennedy’s 190 recusals, similarly, are from his early months on the Court. (Presumably, new justices recuse because they don’t want to vote in a case they didn’t participate in from the beginning.) For both Kennedy and Souter, the rest mainly appear to stem from connections to their home states of California and New Hampshire, respectively. On the other hand, Justice Ruth Bader Ginsburg, who traditionally has reported extensive investments, has recused relatively infrequently — 65 times, for an average of seven per year. After press reports in 1997 indicating that she had voted in cases involving companies whose stock she owned, she and husband Martin Ginsburg sold most of her holdings and put them into J.P. Morgan money market funds. Then, when the Court denied review Jan. 12 in a case that followed the bankruptcy of MCI Inc., J.P. Morgan Chase v. Retirement Systems of Alabama, No. 03-419, Ginsburg did not recuse. O’Connor, who disclosed in 2003 that she had held MCI WorldCom stock, also did not recuse. But Breyer did sit out — possibly because he has an account with Citibank, part of Citigroup, another party in the case. Indeed, guesswork is needed to explain the justices’ recusal practices. Justice John Paul Stevens, whose father made a fortune in Chicago real estate and other ventures — including the Stevens Hotel, now the Chicago Hilton — recuses at times in cases originating from Chicago. Also the owner of farmland in Webster County, Iowa, Stevens recused in a 1999 “right to farm” case from Iowa. Stevens has recused a total of 462 times in his 28-plus years on the Court. Rehnquist recused several times early in his tenure because, as an official in the Nixon Department of Justice, he had been involved in issues that then went before the Court. He has recused 229 times since joining the Court. In an unusual announcement in 2000, Rehnquist said he would not recuse in a pending Microsoft Corp. case, even though his son James, a partner at Boston’s Goodwin Procter, had been retained by Microsoft in a private antitrust suit. As for Justice Clarence Thomas, who has recused 199 times, his most recent recusals, last May, have a personal twist. He recused in two petitions filed on behalf of longtime Georgia death row inmate Carl Isaacs, as he had in an earlier appeal by Isaacs in 1995. In 1995, a lawyer involved in the case alerted the Court that, in 1973, Thomas, as a summer associate at a law firm in Savannah, Ga., was part of the legal team representing Isaacs. Hours after the Court — minus Thomas — denied Isaacs’ petition in May 2003 without dissent, he was executed. COMING SOON: BLACKMUN PAPERS Journalists and scholars are not the only ones eagerly awaiting the March 4 release of the papers of the late Justice Harry Blackmun at the Library of Congress. Blackmun’s former law clerks are also anticipating the release, with a mix of emotions including sadness and pride. “It will bring back warm personal memories,” says Vikram Amar, a 1990 clerk who is now a professor at the University of California Hastings College of the Law. “You will see how much he cared about people — the people he corresponded with, his staff, especially Wanda.” Wanda Martinson, Blackmun’s longtime secretary, now works at the Justice Department. The papers — all 530,800 items — will be made public, as Blackmun requested, on the fifth anniversary of his death. The richest lode of inside information about the Court, Amar says, may come in the detailed notes Blackmun took at the Court’s private conferences. “When he briefed us after each conference, he could literally quote, not just the gist, but what other justices actually said about the cases,” Amar says. Penda Hair, a 1979 Blackmun clerk, says she is excited at the prospect of Blackmun’s papers being released, though she confesses that at a personal level it is “somewhat disconcerting.” She knows that among other things, her own correspondence with the justice and her personnel file was probably saved by Blackmun — and will be made public. Indeed, the library’s index of files indicates that each of Blackmun’s nearly 100 clerks is the subject of at least one folder. One thing Hair says the public will be fascinated by in the Blackmun files is his annotation of bench memos on cases written by clerks from his and other chambers. “He would use checks and exclamation points, and the clerks were always trying to figure out what the markings meant,” Hair recalls. “It wasn’t a complicated code, but you had to break it.” Hair is currently co-director of the Advancement Project, a D.C.-based public policy advocacy group. Meanwhile, the library itself is gearing up for the intense media interest expected that day. The index or “finding aid” will be posted on the library’s Web site, www.loc.gov, at 12:01 a.m., March 4. A special press room is being set up in the Madison building, where the papers are kept, complete with laptop computers that will contain copies of Blackmun’s files on what are likely to be the most sought-after cases: Roe v. Wade, Planned Parenthood v. Casey, Callins v. Collins, Bowers v. Hardwick, and Regents of the University of California v. Bakke, among others. In addition to traditional media, law bloggers will also be weighing in. Emory University historian David Garrow’s early analysis of what he finds in the papers will appear during the day on the Supreme Court Web log operated by the D.C. firm Goldstein & Howe, www.goldsteinhowe.com/blog. BANKRUPTCY NO-SHOW In cases before the Supreme Court, solicitors general almost always defend all acts of Congress that can plausibly be defended. But on March 1, no one from the solicitor general’s office will stand to speak up for a section of the Bankruptcy Code that is under challenge in Tennessee Student Assistance Corp. v. Hood, No. 02-1606. The closely watched bankruptcy case asks whether Congress has the power to abrogate state sovereign immunity from being sued in Bankruptcy Court. Pamela Hood, a Tennessee student, declared bankruptcy in 1999 and tried to discharge her state student loan debt with a filing in Bankruptcy Court in the Western District of Tennessee. Tennessee responded that, based on its sovereign immunity, it could not be sued in Bankruptcy Court. The U.S. Court of Appeals for the 6th Circuit ruled that Congress could trump state sovereignty under the Constitution’s bankruptcy clause. Before the high court, the dispute is between the Tennessee student loan agency and Hood, but it would not have been unusual for the government to seek argument time to defend federal supremacy in bankruptcy matters. The reason for the government’s absence is contained in a letter Solicitor General Theodore Olson wrote to the Senate Judiciary Committee last November. Olson noted that the 6th Circuit ruling conflicts with decisions of five other circuits, as well as numerous decisions of the Supreme Court itself — federalism rulings beginning with the 1996 case Seminole Tribe v. Florida, which said Congress cannot abrogate state immunity under Article I of the Constitution. He also said that his predecessor, Clinton administration SG Seth Waxman, had decided to stay out of an earlier case raising the same issue. “In light of those squarely applicable Supreme Court precedents, I have decided not to intervene in this case,” Olson declared. “I would have liked the government to defend the statute,” says Bingham McCutchen bankruptcy expert G. Eric Brunstad Jr., who filed a brief on the side of Hood. “This is an issue the states care about a great deal. They want Seminole Tribe left intact.” In order not to annoy the states, Brunstad says, the government may have decided it was wiser “not to get involved.” “Courtside” appears monthly in Legal Times. Tony Mauro’s e-mail address is [email protected].

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