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Lack of DOMA Recusals Raise Questions for Kagan, Sotomayor

The way in which the justices decide to hear cases – four of the nine must vote in favor of certiorari, a Latin word for the Supreme Court is taking this case – is not a secret, yet the names of the four who vote for cert. is.

What’s concerning is the jockeying that’s going on behind the scenes regarding which cases from the cert. pool are called up to the High Court. In other words, if there are multiple cases that seek to answer the same question, does the court take up the case that is the least likely to yield recusals? And if not, should they try to minimize cases in which only eight justices are seated?

Take this example: in 2012 the Supreme Court agreed to hear a case related to Section 2 of the federal Defense of Marriage Act, or DOMA. The case they took, Windsor v. U.S., was one that neither of the two newest justices, Kagan and Sotomayor, had worked on when they were solicitor general or a federal judge, respectively.

Did Windsor, and not other DOMA cases, get the nod for that reason? Or were the facts clearer in Windsor? (The Windsors, a lesbian couple, were married in Canada, so many have argued no.)

The public does not know, and the court’s refusal to give us any sense of why the justices grant certain cases is something we’d like to see change.

The Supreme Court does not require justices to explain the reasons for their recusals, and it’s clear why this opaque practice must end. While we do not assume Chief Justice Robert and his colleagues to be acting improperly on a regular basis, there is no reason for them to hide behind this antiquated practice that leave the media and members of the public guessing if and when a justice has a potential conflict of interest.

Fix the Court is calling on the chief justice to establish a formal recusal reporting procedure in which justices would submit the reason for their recusal to the court’s Public Information Office, which would then post the reason on the court’s website. And we’re calling on the court to make it easier for attorneys and members of the public to file a request for recusal in any case.

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