Document Type

Article

Publication Date

1987

Abstract

In September 1986, the Senate confirmed William H. Rehnquist as Chief Justice of the United States by a vote of 66 to 33, an unusually close vote for a successful Supreme Court nominee. Although Justice Rehnquist’s elevation from Associate to Chief Justice engendered substantial criticism because of his judicial philosophy, past political activity, and possible views on race relations, the most serious threat to his nomination arose from his decision fifteen years earlier to sit and cast the deciding vote in a Supreme Court case in which many questioned both his impartiality and his candor. That Justice Rehnquist's role in Laird v. Tatum became the chief figurative thorn in his side says more about the way our system treats the question of the disqualification of Supreme Court Justices than it does the merits of Justice Rehnquist's decision in that case. This Article discusses the Tatum case and Justice Rehnquist's participation in the decision. Like most, I conclude that the Chief Justice made a grave error by participating in Tatum. More important, however, is the substantial systemic defect that permitted this error to occur and stand without review. This Article examines the federal law governing disqualification, the prevailing federal court procedures for deciding disqualification questions, and the Supreme Court's flawed practice of permitting each Justice to make a final and unreviewable decision on matters of recusal. The absence of review by a neutral third party has permitted too many questionable recusal decisions by even the most revered Supreme Court Justices. To correct this result, this Article proposes a statutory amendment providing for review of disqualification motions denied by Supreme Court Justices.

Publication Citation

53 Brook. L. Rev. 589 (1987).