Justice Breyer on Recusal

At a recent Aspen Institute conference, Justice Breyer was asked whether Justice Thomas should recuse himself if and when the health care litigation reaches the Supreme Court. The Daily Beast reported on his response:

“This is a false issue,” Breyer said in response to an audience member who posed a hypothetical case loosely fitting Thomas’ situation. “As far as what your wife does or your husband does, I myself try to stick to a certain principle, and feel very strongly about it, that a wife or a husband is an independent person and they make up their own minds what their career is going to be.” . . .

On Wednesday, Breyer suggested that this could be a very bad idea. Noting that federal judges in lower courts are bound by explicit guidelines that Supreme Court justices are not obliged to follow, Breyer said, “The Supreme Court is different in one respect. In every other court, if I decided in a close matter to recuse myself, that’s the easy decision. That’s one fewer case I have to decide, and besides, they’ll bring in somebody else to decide it. If I recuse myself on the Supreme Court, there is no one else and that could switch the result.”

Breyer went on, “My wife happens to be a clinical psychologist at Dana Farber [Medical Center in Boston], and when I get cases involving psychology, I sit in those cases, OK?”

The more relevant comparison would be Justice Ginsburg. Her late husband was one of the most prominent tax attorneys in Washington, D.C. His clients certainly had an interest in the outcome of big taxes cases before the Court, but no one suggested Justice Ginsburg was required to recuse from tax cases on this basis.

Hat tip: UPI.