Much has been made since Justice Kagan’s nomination last year of her high recusal rate this term due to her participation as Solicitor General in many cases now before the Court. This morning, however, the Court issued its latest order list that features an inversion of the usual recusal pattern for this term:
In this petition against Justice Thomas, I’m left wondering here why Justice Kagan was left the last justice standing. After all, she has sat on the bench with Justice Thomas for the better part of a term now, and the other justices appear to have taken no part in considering this petition solely on the basis of potential collegial bias.* Is there some arcane one-year rule in the Court’s internal procedures that was written for this very scenario? What would have happened if the Court received this petition next term or the term thereafter?
As for the petition itself, Petitioner Kenneth L. Smith appears to be a serial pro se litigant on a mission to oust Article III judges for violations of their good behavior tenure. This petition against Justice Thomas, then, came to the Court at an opportune time as Justice Thomas has been mired in ethics attacks for months. While I cannot find his cert. petition in Smith v. Thomas, I have found another recent brief to the Tenth Circuit against Senior Judge Stephen H. Anderson. In the brief, Smith colorfully presents his other cases against judges over the past decade:
*UPDATE: QED and Joe in the comments did the due diligence to dig up the docket listing for Smith v. Thomas at the D.C. Circuit. Turns out Smith brought suit against every sitting justice in October 2009. Therefore, the mass recusal today was not because of perceived bias in favor of the named defendant, Justice Thomas, but rather that all eight justices (and former Justice John Paul Stevens) were also defendants.
QED’s link didn’t work for me, so here’s a cached copy. And here is the District Court’s order granting the justices’ motion to dismiss. Turns out, as Joe points out below, that the suit was not an effort to remove the justices, but rather an effort to seek “a mandate from [the district court] requiring the Justices of the United States Supreme Court to hear all petitions brought to that body under a writ of error or in the alternative, a formal declaration that the Bill of Rights is null and void for want of meaningful enforcement.”