The Corner

Recuse or Lose

This is kind of a random question, but I was listening to Jeffrey Rosen’s new book, The Supreme Court, on my wife’s iPod (yes, I’m that cool) and he recounts a story in the introduction that kind of intrigued me. This is surely old hat for lots of folks, but I didn’t know or hadn’t remembered that when Truman ordered the seizure of the steel mills that he did so in part because the Chief Justice of the Supreme Court had given him the green light. Fred M. Vinson told Truman in a private consultation that the Court would surely uphold such an exercise of the Commander-in-Chief’s war powers. Rosen goes on to tell the story of how Vinson was wrong and the Court ended up voting 6-to-3 against Truman. But here’s the thing that bugs me that Rosen leaves un-addressed (at least so far). Shouldn’t Vinson have recused himself? I mean he basically said what his vote would be — and how his colleagues would vote — before hearing the arguments, reading the briefs, or hearing any evidence other than the President’s version of events. Isn’t that literally a case of prejudgment?

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