In the wake of the Supreme Court's punting on the Pledge of Allegiance issue yesterday, How Appealing's Howard Basham poses an interesting question: can the three concurring justices hear a new case dealing with the same issue? If Justice Scalia properly recused himself because of prior statements he made about the Newdow case, do the concurring opinions dealing the substance of the Pledge issue require recusal of their authors? I don't think so. Scalia's statement was made out of court prior to the case being heard in detail (briefs, argument, etc.) and indicate an uniformed prior judgment. The opinions from Rehnquist, et. al, on the other hand, were the end product of the full Supreme Court process. That strikes me as a substantive difference.
Tuesday, June 15, 2004
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