In 2004, Justice Scalia refused to recuse himself from CHENEY v. UNITED STATES DIST. COURT FOR D. C. In the memorandum explaining his decision, Scalia provides a helpful explanation of why those who serve on a “court of last resort” — like the U.S. Supreme Court where he served, or the N.C. Supreme Court that is currently considering the involuntary recusal of two of its members — should not recuse themselves unless recusal is clearly required:
Let me respond, at the outset, to Sierra Club’s suggestion that I should “resolve any doubts in favor of recusal.” That might be sound advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case. Thus, as Justices stated in their 1993 Statement of Recusal Policy: “[W]e do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution, whenever a relative is a partner in the firm before us or acted as a lawyer at an earlier stage. Even one unnecessary recusal impairs the functioning of the Court.” Moreover, granting the motion is (insofar as the outcome of the particular case is concerned) effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all. [Citations omitted and emphasis added.]
