Today’s big news is that Chief Justice Rhenquist is hospitalized with thyroid cancer. Current reports indicate that he will is expected to be able to sit on November 1, when the Court reconvenes for its next round of oral arguments, but some commentators question whether this will be possible.
My question is what happens in cases where a Justice misses the oral argument, but returns to the Court before decision is rendered. Is the Justice who missed the argument permitted to participate in the decision? The Supreme Court Rules do not appear to answer the question.
Does anyone know what the procedure is. I am certain that this has happened with some frequency in the past.
“Not every justice participates in every case. Sometimes, even justices get sick. They may also recuse themselves, not hearing a case or at least not participating in its decision because of some conflict of interest. In order for a case to be decided, however, a majority vote of those participating must be reached. (Supreme Court rules stiplulate that six justices constitute a quorum, the minimum number to conduct business). If a majority isn’t reached, or if some of the justices remain undecided, the case can be ordered to be reargued.”
-Supreme Court for Dummies, pages 51-52
Thanks, stpauler. Still that doesn’t really answer the question of whether a Justice can participate in the decision if he or she misses the oral argument.
I am speaking purely off the top of my head here, synthesizing what I’ve read about the court and retained in memory, so there’s a big disclaimer that it’s purely my opinion on what the standards are.
Each justice is considered the sole judge of his own competence and objectivity in any case. Judges will recuse themselves if they have a potential conflict of interest – if, for example, a case comes before them in which a litigant is a corporation in which they have a substantial investment as private citizens.
A judge who considers that he has sufficient grounds in the briefs and law clerks’ analysis regarding a case for which he missed oral argument to make an informed judgment will not allow his having missed the oral argument to keep him from voting. If, however, he feels that hearing oral argument is a factor that would influence his vote, he will recuse himself. But much more commonly, rather than doing either of the above, a justice who has missed oral argument will ask that the case be reargued, so that he can participate in the orals. Since other justices may often feel that there are significant elements not brought out in the oral arguments they have already heard, he will generally get support, and the case will be held over to be reargued.
My educated guess is in like with Polycarp’s. Note that the Court taperecords and transcribes oral arguments, so while a missing justice might not have the opportunity to ask questions, he won’t have to go without the discussion had at the argument. I wouldn’t say it should be an automatic disqualification. N.B. that it’s the Chief Justice who would normally be in charge of policing this type of thing.