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Justice by Designation

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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18 Responses

  1. Steven Lubet says:

    “the Justices must adopt narrower recusal standards than other judges because nobody can replace a missing Justice.”

    Just for the record, the federal recusal statute applies equally to SCOTUS justices and all other United States judges. A designated substitute justice would be a fine idea (many state supreme courts do just that), but it is erroneous to say that SCOTUS justices do not have to follow the same disqualification rules as lower court judges.

  2. Gerard Magliocca says:

    That’s true, but in practice they recuse less often than lower federal court judges. Plus, my understanding is that the Code of Judicial Conduct does not apply to the Justices. Is that incorrect?

  3. Doctor Chim Richalds says:

    The Supreme Court feat. Frank Easterbrook?

  4. Steven Lubet says:

    Indeed, the Code of Judicial Conduct does not apply to SCOTUS (because the justices have declined to adopt it, unlike every other court in the country). But that is irrelevant for recusal purposes because 28 USC 455 has codified virtually identical provisions. So yes, “in practice they recuse less often than lower federal judges,” even though the statutory requirements are identical.

  5. Jonathan Reich says:

    The Second Circuit sat by designation in U.S. v. Alcoa when the Supreme Court could not form a quorum.

  6. Gerard Magliocca says:

    Yes, I’m not sure how that happened. Act of Congress? The Court designated the Second Circuit as a special master? I’ll look in Gunther’s biography of Learned Hand.

  7. Chris says:

    Similar to the AA shortstop getting a call when the all-star pulls a groin muscle…

    Would this encourage judicial showing off, a high profile chance to please possible political patrons or to demonstrate that one is not really as right/left-wing as might have been presumed? I don’t know how many circuit court judges have a legitimate shot at the Supreme Court, but for any who do this would be a prime opportunity to preen.

  8. Gerard Magliocca says:

    Turns out, BTW, that the Sherman Act as amended contained a provision that allowed the Alcoa case to be heard by the Second Circuit.

  9. Bill Reynolds says:

    Jonathan. In Alcoa, the 2d Circuit sat as the final appellate court pursuant to a statute –28 USC sec 1654, if memory serves–that said that if there was not a quorum in the SC, then the 3 most senior judges of the Circuit in which the case arose would hear the appeal. Three years later in Am Tobacco, the SC stated that Alcoa should be considered equivalent to a SC decision. I believe sec 1654 has been repealed. I also believe it was used only one other time.

    Greg Young and I have written on the problem of adding someone to the SC in the event of death or recusal. See Reynolds and Young Equal Divisions in The Supreme Court: History, Problems, and Proposals, 62 NO. CAR. L. REV. 29 (1984)

  10. Joe says:

    For those who don’t have access to the article supplied by Bill Reynolds, perhaps the main problem(s) can be briefly cited.

    The recusal issue doesn’t seem too troubling — there are a limited number of cases where justices need to recuse themselves and rarely does it result in a 4-4 tie or much more rarely, no quorum being available. I don’t think this really affects justices’ decisions to recuse themselves, even if it is tossed out as a reason.

    And, even if that occurs, the matter (except in a very narrow number of cases) would have had been tried at least twice, once on appeal, already. All the same, I don’t see the problem with designating someone for the case, an appellate judge if a retired justice is not possible.

  11. Mark says:

    I’m not sure you could get Democratic legislators behind this proposal given the prevalence of Republicans on the circuit courts (55%); and I think both legislators and Justices considering recusal would be put off by the high variance among circuit judges in ideology and, perhaps, legal competence. Potentially a Justice would be even less willing to recuse if she knew she’d be replaced by a random circuit judge than if she knew she couldn’t be replaced, because in the latter scenario the Court would simply split 4-4 (which has no effect) if the recusing Justice’s vote would have been outcome determinative.

    So why not let each sitting Justice designate a circuit judge ahead of time to serve as his replacement in case of recusal? That might cause a bit of awkwardness (though the designations could be secret until a recusal actually occurred), but it would fix the problems I’ve identified. And it would make Justices more willing to recuse in close cases (cases where there is arguably an “appearance” or “probability of bias”), which I assume is the general goal after Caperton v. Massey, etc.

  12. David says:

    Bill Reynolds is right (or close enough). IIRC the appeal from the district court was directly to the Supreme Court, as was usually the case with antitrust decisions at the time. The Supreme Court lacked a quorum and the lower decision languished for two years unti Congress amended Title 15 to permit the Supreme Court to review it to the circuit court that normally reviewed decisions of the district court. The statute is still on the books. 28 USC 2109 (first paragraph). Given the utter decline of direct appeals to the Supreme Court, it’s not clear how useful this portion of the statute is.

    The second paragraph of 28 USC 2109 is the statute that leads to the affirmance of a circuit court decision when a quorum is lacking (with the same effect as an equally divided court).

  13. Joe says:

    “I’m not sure you could get Democratic legislators behind this proposal given the prevalence of Republicans on the circuit courts.”

    Democrats have voiced support of by designation assignments and a 5% prevalence doesn’t seem to me enough for them to reject it. Is this judge picking his/her substitute idea the rule some place else? If not, why not? What if the designate him or herself can’t take part, including if the person was already on the panel? This is more possible if there was an en banc, which is more likely to occur in tricky cases that would be taken in the first place.

  14. Bill Reynolds says:

    David. Thanks for correcting my aging memory.

  15. Mark says:

    Joe, the prevalence is 10% (55-45), which means that a randomly selected circuit judge is 22% more likely to be Republican than Democratic (55/45); even if this advantage to Republicans is considered small, I don’t see why Democrats would support a proposal that has no upside for them simply because it’s downside isn’t huge. But perhaps they would. Political deadlock is not my main objection.

    My main objection is to having a randomly selected circuit judge decide a Supreme Court case, perhaps an important one like the two 4-4 cases last Term (if the circuit judge’s vote wouldn’t be decisive then it doesn’t matter whether we designate one or just let the 8 remaining Justices resolve the case as under current practice). A randomly selected judge would often be someone whose legal competence or ideological preferences would make him ineligible for the Supreme Court (most circuit judges are never considered for promotion to the Supreme Court, and when the President and Senate appoint a circuit judge they by no means assert that they consider him qualified for the Supreme Court). So why should any citizen, legislator, or Justice prefer having that randomly selected circuit judge decide a 5-4 case to the status quo, under which the Court would split 4-4 and fail to issue a precedential opinion, and then could take up the same legal issue in a later case with different parties and resolve it with a full Court? And why would a Justice who had a plausible argument against recusal recuse herself knowing that she’d be replaced by a random circuit judge? Surely Scalia would rather have the Court split 4-4 than risk having Reinhardt cast his vote for him.

    Another, slightly distinct objection is that randomly selecting a circuit judge to cast the decisive vote would amount to deciding the case with a randomization machine. On any case that could split the Court 4-4, there are plenty of circuit judges who would go one way and plenty who’d go the other way. So the outcome of the case would be arbitrary–just the luck of the draw–which offends basic principles of fairness and rationality. (It’s true that we have something like this effect at the circuit level, since panels are assigned randomly. But circuit panels have much less discretion [they're bound by Supreme Court and circuit precedent, while the Supreme Court is bound by nothing], and they’re subject to direct oversight by the en banc circuit court and the Supreme Court. So the randomness is constrained and accordingly less problematic.)

    My proposal greatly weakens these objections: A circuit judge would decide a case only when the Justice he sat in for had expressed faith in his legal competence and legal views by designating him (since Justices are high-profile democratic appointees, this vote of confidence would increase the democratic legitimacy of the designee). And designees would presumably be ideologically similar to the Justices they sat in for, so that the Court would tend to reach the same result it would’ve reached had there been no reason for the Justice to recuse.

    Your objection that a designee might be unable to sit, for instance because his circuit had decided the case, is a very good one; but it could be met by letting each Justice pick 2 (or more) designees from different circuits (and there’s no reason why the Justices’ designations couldn’t overlap).

    I don’t know if my proposal is the rule anywhere else, but no other judiciary is particularly analogous to the federal judiciary, and anyhow there’s a first time for everything.

  16. Bill Reynolds says:

    The Court of Appeals of Md–the highest ct—in an effort to reduce discretion in apptm, replaces a recused judge with the judge who preceded the recused judge. Thus, if Judge Brown retires and is replaced by Judge Smith, if Smith recuses herself, then Brown replaces Smith. An interesting model, worth consideration.

  17. Joe says:

    Mark, I see my computation error.

    I don’t think the legislation would be blocked; if any Democrats oppose it for that reason (and I am not sure many would), Republicans should balance things out.

    Court of appeals judges are put to a higher test before being confirmed but not given the option to decide who would sit for them if they need to recuse themselves, including if district court judges are filled in their place.

    Finding someone ideologically the same also is not the rule. Many of these cases are not of much concern to the justice. If it was, s/he very well might not trust even a soul brother/sister, who just might err all the same. And, precedent or not, if the justice thinks the result wrong, another case can be taken later on to overrule it.

    Regardless, random selection isn’t the only option. Those with extended service in the circuits might make up the pool. Other judges, including state supreme court judges on issues that won’t be affected by federal review, do not get the power to replace themselves you propose. It might even have constitutional problems since they are in effect appointing superior officers.

  18. Mark says:

    Joe, your point about superior officers is intriguing. I suppose we all agree that there is no problem with circuit judges acting as Justices, at least if the President and Senate declare that they have this power (otherwise none of the proposals under discussion are constitutional). And I think it is right that a circuit judge who acts as a Justice is a superior officer for Appointments Clause purposes. So the question is whether, assuming that a circuit judge may sit as a Justice, a Justice may constitutionally designate which particular circuit judge shall sit for him in case of recusal.

    Plainly a Justice may not appoint a superior officer. So we’re asking whether a Justice’s designation of a specific circuit judge from among the pool who have already been appointed by the President and Senate constitutes a second “appointment” in violation of the Appointments Clause. My intuition is that it does not: the Justice’s designation is just an assignment of a task to an officer constitutionally qualified for that task already by virtue of his position as a circuit judge. But I can’t find any helpful precedent on this point, and I can’t think of anything constitutionally analogous that has actually been done.

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