Quote:
Originally posted by Mmmm, Burger (C.J.)
Majority, not 5. Quorum is 6. To grant cert. requires 4 votes regardless of recusals.
But question the precedential value of a 7-justice decision (would you be comfortable standing on the basis of case decided by 7, if Thomas and Scalia had been recused?)
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I'm not going to pretend to understand all the issues involved in recusal, given that I'm not a litigator. But it doesn't necessarily strike me as a bad thing to require a bit better than a pure majority in some cases. I wouldn't want the barrier to be insurmountable, but a 5 to 3 margin doesn't seem like an unreasonable one.
Yes, if a decision were 4 to 3 and the 2 judges not there were likely to change it if the matter made it up to Supremes again, I'd worry about that in other cases. But aren't precedents in general always subject to being narrowed, rethought, amended, overruled? I don't think all precedents are created equal to begin with. And is having a case that is going to be weak precedent going forward worse than having a judiciary that appears compromised?
