My daughter Sarah and I have a new essay up on The Hill, about the irony of the recent SCOTUS decision on New York’s eviction moratorium, compared to the standards the justices set for themselves.
Here is the gist:
The judicial black box of Supreme Court recusal
BY SARAH LIPTON-LUBET AND STEVEN LUBET, OPINION CONTRIBUTORS —
The U.S. Supreme Court displayed a bit of hypocrisy last week, when a 6-3 majority blocked a key provision of New York State’s eviction moratorium law by invoking a principle that they have steadfastly refused to apply to themselves.
The Court’s unsigned opinion in Chrysafis v. Marks, issued as an emergency measure on what has come to be known at its “shadow docket,” held that the New York law violated landlords’ due process rights by allowing a renter to conclusively forestall eviction by submitting an affidavit that “self-certifies financial hardship.” In a one-sentence rationale for the ruling, SCOTUS explained that the truncated procedure, which a landlord could not contest, violates its “longstanding teaching that ordinarily ‘no man can be a judge in his own case.’” That stands in sharp contrast to the Court’s approach to recusal, in which each justice personally exercises exclusive and unreviewable discretion over requests for their own disqualification.
Unfortunately, SCOTUS has adopted the “historic practice” of deferring recusal decisions to the justice in question, with no review by the other members of the Court.
You can read the entire piece here.