# SCOTUS: Who decides a case when (almost) all judges have to recuse themselves?
**URL:** https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872
**Category:** Factual Questions
**Created:** [August 10, 2013, 2:43pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872 "2013-08-10T14:43:15Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@Donnerwetter](https://boards.straightdope.com/u/Donnerwetter)
#### Post date: [August 10, 2013, 2:43pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/1 "2013-08-10T14:43:15Z")
This question is inspired by the circumstances surrounding the [case of convicted murderer Napoleon Beazley](https://en.wikipedia.org/wiki/Napoleon_Beazley): When the appeals in the case reached the Supreme Court, 3 of the 9 judges had to recuse themselves because they had personal ties to the murder victim.
What would happen if a legal case came up in which 6, maybe 7 or 8, maybe even all the judges of the United States Supreme Court had to recuse themselves?
I would assume that on any other judicial panel, there are rules in place for other judges to fill in for their colleagues. But as far as the Supreme Court of the United States is concerned, there are only 9 judges who can do the job.
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [August 10, 2013, 2:48pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/2 "2013-08-10T14:48:42Z")
The QUORUM is 6 minium by law, less than 6, it either gets STAYED or sent back by the Justice for that Allotment, I would imagine?
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### Author:  [@Procrustus](https://boards.straightdope.com/u/Procrustus)
#### Post date: [August 10, 2013, 3:40pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/3 "2013-08-10T15:40:47Z")
In state supreme courts, the bring up other judges from the court of appeals when necessary. They sit as a justice _pro tem_ In the federal system, district court judges occasionally sit on the Court of Appeals. I suppose the SCOTUS could call up _pro tem_ Court of Appeals judges, but I haven’t researched it.
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### Author:  [@friedo](https://boards.straightdope.com/u/friedo)
#### Post date: [August 10, 2013, 3:58pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/4 "2013-08-10T15:58:31Z")
> [@Procrustus](#):
>
> I suppose the SCOTUS could call up _pro tem_ Court of Appeals judges, but I haven’t researched it.
They can’t. The federal Constitution is very clear that the SCOTUS consists of those justices appointed by the President and confirmed by the Senate.
There have been several cases where recusals have forced the Supreme Court to [automatically affirm](http://www.nytimes.com/2008/05/13/washington/13scotus.html?_r=0) a lower-court ruling, because a quorum is not available.
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### Author:  [@MikeS](https://boards.straightdope.com/u/MikeS)
#### Post date: [August 10, 2013, 5:29pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/5 "2013-08-10T17:29:17Z")
> [@friedo](#):
>
> There have been several cases where recusals have forced the Supreme Court to [automatically affirm](http://www.nytimes.com/2008/05/13/washington/13scotus.html?_r=0) a lower-court ruling, because a quorum is not available.
What would happen in a case where the Supreme Court had original jurisdiction? I would guess that a large number of recusals in such cases would be exceedingly unlikely, but it’s not impossible.
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### Author:  [@brazil84](https://boards.straightdope.com/u/brazil84)
#### Post date: [August 10, 2013, 5:54pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/6 "2013-08-10T17:54:20Z")
> [@Donnerwetter](#):
>
> What would happen if a legal case came up in which 6, maybe 7 or 8, maybe even all the judges of the United States Supreme Court had to recuse themselves?
I would think that the rule of necessity would apply.
“The principle that a judge will not be disqualified when the effect would be that no judge could hear the case is sometimes referred to as the ‘rule of necessity’”
> **[Recusal](https://en.wikipedia.org/wiki/Judicial_disqualification)**
>
> Recusal is the legal process by which a judge, juror, or other adjudicator steps aside from participating in a case due to potential bias, conflict of interest, or appearance of impropriety. This practice is fundamental to ensuring fairness and impartiality in legal proceedings, preserving the integrity of the judiciary, and maintaining public confidence in the legal system. Historical and modern legal frameworks outline specific grounds for recusal, such as personal or financial conflicts of i...
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [August 10, 2013, 6:48pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/7 "2013-08-10T18:48:29Z")
> [@friedo](#):
>
> There have been several cases where recusals have forced the Supreme Court to [automatically affirm](http://www.nytimes.com/2008/05/13/washington/13scotus.html?_r=0) a lower-court ruling, because a quorum is not available.
Excellent citation.
To add, similar in nature when the original court in 1789 only had 6 justices, if there was a tie, the lower court decision stood.
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### Author:  [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)
#### Post date: [August 10, 2013, 11:09pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/8 "2013-08-10T23:09:32Z")
Certain antitrust cases can be referred to a court of appeals. Under [15 USC 29](http://www.law.cornell.edu/uscode/text/15/29), some cases could be appealed directly to the Supreme Court. in 1944, Congress saw that the Alcoa case, which had been in trial for over four years, was headed for multiple recusals at the Supreme Court. It added a provision permitting the Supreme Court to refer a case to a court of appeals for final decision. Indeed, in [_United States v. Alcoa_](http://en.wikipedia.org/wiki/United_States_v._Alcoa), six justices recused themselves, and they sent the case to the Second Circuit for decision.
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [August 11, 2013, 5:59pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/9 "2013-08-11T17:59:18Z")
Another excellent citation Tom.
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### Author:  [@Smapti](https://boards.straightdope.com/u/Smapti)
#### Post date: [August 11, 2013, 6:09pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/10 "2013-08-11T18:09:33Z")
IIRC, the number of Supreme Court justices isn’t specified by law. In such a case where too many justices recused themselves to constitute a quorum, could the president opt to appoint a number of justices specifically to hear that case, with the understanding that they’d resign after the ruling?
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [August 11, 2013, 6:14pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/11 "2013-08-11T18:14:36Z")
The law sets the # at 9.
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### Author:  [@friedo](https://boards.straightdope.com/u/friedo)
#### Post date: [August 11, 2013, 6:38pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/12 "2013-08-11T18:38:51Z")
> [@Smapti](#):
>
> IIRC, the number of Supreme Court justices isn’t specified by law. In such a case where too many justices recused themselves to constitute a quorum, could the president opt to appoint a number of justices specifically to hear that case, with the understanding that they’d resign after the ruling?
The number is set by statute:
> [@28 USC § 1](#):
>
> The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.
In order to appoint more justices, you’d need the cooperation of Congress.
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [August 11, 2013, 6:40pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/13 "2013-08-11T18:40:03Z")
> [@friedo](#):
>
> In order to appoint more justices, you’d need the cooperation of Congress.
Yeah, like FDR tried to do.
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### Author:  [@friedo](https://boards.straightdope.com/u/friedo)
#### Post date: [August 11, 2013, 6:45pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/14 "2013-08-11T18:45:40Z")
> [@lawbuff](#):
>
> Yeah, like FDR tried to do.
Needless to say, no President has tried that stunt since then.
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### Author:  [@akennett](https://boards.straightdope.com/u/akennett)
#### Post date: [August 12, 2013, 2:48am UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/15 "2013-08-12T02:48:05Z")
> [@friedo](#):
>
> Needless to say, no President has tried that stunt since then.
Well of course they haven’t. Not after Congress gave FDR polio as a punishment for trying that move!
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### Author:  [@MikeS](https://boards.straightdope.com/u/MikeS)
#### Post date: [August 13, 2013, 1:15pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/16 "2013-08-13T13:15:24Z")
> [@akennett](#):
>
> Well of course they haven’t. Not after Congress gave FDR polio as a punishment for trying that move!
Don’t be silly. Everyone knows that FDR developed polio as a secret weapon in the [Hobo Wars.](http://www.youtube.com/watch?v=t1JIa5r5nkE)
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### Author:  [@yellowjacketcoder](https://boards.straightdope.com/u/yellowjacketcoder)
#### Post date: [August 13, 2013, 2:33pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/17 "2013-08-13T14:33:54Z")
> [@friedo](#):
>
> They can’t. The federal Constitution is very clear that the SCOTUS consists of those justices appointed by the President and confirmed by the Senate.
>
> There have been several cases where recusals have forced the Supreme Court to [automatically affirm](http://www.nytimes.com/2008/05/13/washington/13scotus.html?_r=0) a lower-court ruling, because a quorum is not available.
This brings up an interesting question. Say there was some case, where it was obvious to the justices involved that the split would be 5-4 to overturn. (Let’s ignore how ‘obvious’ that may be). Is there anything preventing the 4 minority justices from recusing themselves to force an automatic affirmation?
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### Author:  [@lawbuff](https://boards.straightdope.com/u/lawbuff)
#### Post date: [August 13, 2013, 2:40pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/18 "2013-08-13T14:40:42Z")
> [@yellowjacketcoder](#):
>
> This brings up an interesting question. Say there was some case, where it was obvious to the justices involved that the split would be 5-4 to overturn. (Let’s ignore how ‘obvious’ that may be). Is there anything preventing the 4 minority justices from recusing themselves to force an automatic affirmation?
Here is an excellent piece on when and why a SC Justice should recuse themselves, citing;
> **[28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge](https://www.law.cornell.edu/uscode/text/28/455)**
[http://www.afj.org/connect-with-the-issues/supreme-court-ethics-reform/recusal-afj-memo.pdf](http://www.afj.org/connect-with-the-issues/supreme-court-ethics-reform/recusal-afj-memo.pdf)
If impropriety is found, an Impeachment may take place?
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### Author:  [@Darth\_Panda](https://boards.straightdope.com/u/Darth_Panda)
#### Post date: [August 13, 2013, 2:44pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/19 "2013-08-13T14:44:39Z")
So if you murder a Supreme Court Justice in DC, then there’s no chance of an appeal to the highest court?
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### Author:  [@friedo](https://boards.straightdope.com/u/friedo)
#### Post date: [August 13, 2013, 2:47pm UTC](https://boards.straightdope.com/t/scotus-who-decides-a-case-when-almost-all-judges-have-to-recuse-themselves/665872/20 "2013-08-13T14:47:14Z")
Wha?
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