Recused, it turns out, if the brother is Justice Stephen Breyer and the other brother is Judge Charles Breyer. As Tony Mauro (Legal Times) reports, “Breyer makes it a practice to recuse in cases that were handled by his brother Charles, a federal trial judge in the Northern District of California.” My quick search for (charles +3 breyer) through the Westlaw SCT database supports this — in all three cases found by the search (Olympic Airways v. Husain, Department of Housing and Urban Development v. Rucker, and U.S. v. Oakland Cannabis Buyers’ Co-op.), Judge Breyer was the judge below and Justice Breyer recused himself.
This turns out to be important in the case involving the jail strip search / visual body cavity search policy, Bull v. City & County of San Francisco. Judge Breyer was the trial judge in that case, so presumably Justice Breyer will recuse himself. So if plaintiffs petition for certiorari, they need five votes without Justice Breyer’s vote (since a 4-4 vote affirms the decision below).
To get to those five votes, plaintiffs would have to get at least two votes from the Court’s conservative wing. I doubt they will get those two votes. They might not even get some of the liberal votes — even Justice Breyer wouldn’t be a sure vote for the plaintiffs. Still, without Justice Breyer, the plaintiffs would have to persuade not just the moderate conservative Justice Kennedy, but also one of the more solid conservatives (Chief Justice Roberts and Justices Scalia, Thomas, and Alito). Pretty unlikely, it seems to me.
So plaintiffs’ lawyers face an especially tough choice when deciding whether to petition for certiorari. The lawyers, given the nature of this case, are interested in jail inmates’ Fourth Amendment rights more broadly, and not just in getting a victory for their clients in this particular litigation. (I suspect the clients have a similar view.) They must thus be worried that if five votes come out against them, the Ninth Circuit precedent would become nationwide, and diminish the Fourth Amendment rights of jail inmates throughout the country. That’s the cost of a cert petition. And the possible benefit of a cert petition seems especially improbable, given Justice Breyer’s likely recusal. So Judge Breyer’s role in this case might lead the plaintiffs’ lawyers to avoid petitioning for Supreme Court review in this case.
UPDATE: On the other hand, here’s a different analysis from commenter tvk:
[If plaintiffs] lose 4–4, with Kennedy joining the liberals and where Breyer’s vote might have made it a win … from a long-term strategic standpoint, [that's] not a bad result. The equally divided court creates no precedent; the Ninth Circuit opinion stays on the books but is heavily undermined. Everyone will predict that in the next case, Breyer will jump onboard with Kennedy and the liberals, so you can predict that other courts of appeals will jump in front of the bandwagon. The individual petitioner loses, but that was never quite the point anyway, as you point out.
Maybe so.
FURTHER UPDATE: I forgot to mention that the Court sometimes considers whether a Justice will be recused when deciding whether to grant a case. And I would think this would be especially likely if the case seems likely to split 4-4 — who wants to do the work required to prepare for the case (and make the lawyers do all that work), only to have the case affirmed by an equally divided court? So that, coupled with the greater difficulty of getting 4 votes to grant, coupled with the possibility that the liberal Justices who are deciding whether to grant will probably doubt that they’ll get 5 votes to reverse, decreases the probability of cert. The probability is still substantial, given the 6-5 vote below, and the circuit split. But it’s less than it would have been had the trial judge been someone besides Justice Breyer’s brother.
ruuffles says:
Isn’t another option to ask for a super en banc, since the en banc vote was especially close even without a single Carter judge?
February 9, 2010, 4:32 pmBill Altreuter says:
I wonder what the rational for recusal is in a case like this? The question before the Supreme Court is a pure question of law, and it seems unlikely that Justice Stephen Breyer would be viewed as biased. I would be interested in hearing why he’d do that.
February 9, 2010, 5:08 pmEugene Volokh says:
ruuffles: They can ask, but I don’t think they’d receive; unless I’m mistaken, the Ninth Circuit has never granted a request for en banc by the entire court (as opposed to an 11-judge panel, or, under the rules in effect a few years ago, a 15-judge panel).
February 9, 2010, 5:11 pmtvk says:
I’m not sure I agree with the calculus. They need four votes to get certiorari in the first place, and without Justice Breyer it might be hard. But assuming they get past that hurdle, here are the possibilities:
1. They lose 5-3, with Kennedy in the majority. Breyer’s vote would not have made a difference.
2. They win 5-3, with Kennedy + solid conservative in the majority. Again, Breyer’s vote would not have made a difference.
3. They lose 4-4, with Kennedy joining the liberals and where Breyer’s vote might have made it a win. But from a long-term strategic standpoint, not a bad result. The equally divided court creates no precedent; the Ninth Circuit opinion stays on the books but is heavily undermined. Everyone will predict that in the next case, Breyer will jump onboard with Kennedy and the liberals, so you can predict that other courts of appeals will jump in front of the bandwagon. The individual petitioner loses, but that was never quite the point anyway, as you point out.
February 9, 2010, 5:11 pmruuffles says:
@ Bill Altreuter
In case you’re curious, Bashman of howappealing has an interesting write up. with this excerpt of other cases.
The U.S. Congress in 1998 passed a law providing that “No person may be appointed to the position of judge of a court exercising judicial power under article III of the United States Constitution (other than the Supreme Court) who is related by affinity or consanguinity within the degree of first cousin to any judge who is a member of the same court.” While it may be disputed whether Congress has the authority to limit in this matter how the President of the United States exercises the power to appoint Article III judges, certainly the U.S. Senate can refuse to confirm for a lifetime appointment any nominees who run afoul of the statute.
Yet for the past twelve years, two brothers — Richard S. Arnold and Morris S. Arnold — have served together on the U.S. Court of Appeals for the Eighth Circuit, and they have sat on the same three-judge panels many times and have heard cases together when that court has sat en banc.
Some accused President Bill Clinton of taking the lyrics to Paul Simon’s song “Mother and Child Reunion” too literally when he nominated William A. Fletcher to join the Ninth Circuit, where his mother Betty Binns Fletcher was already serving as a judge. Republicans in the U.S. Senate refused to confirm the son unless the mother promised to take senior status, which she did. The two Fletchers do not appear to have heard any cases together during the son’s nearly six years of service on that court.
February 9, 2010, 5:38 pmO Brother, Where Art Thou? | Liberal Whoppers says:
[...] the original here: O Brother, Where Art Thou? [...]
February 9, 2010, 8:50 pmHSofAUS says:
In Australia, we have a somewhat (by which I mean substantially) smaller legal community. It is extremely common for the children of judges to be a successful advocate who would commonly argue in the court in which the parent is a judge. The unofficial practice in the High Court (our highest court for which there are seven justices) is to recuse in the, quite common, situation that the judge’s child is arguing.
One wonders whether lawyers would prefer to brief such a child when the parent’s jurisprudence is not compatible with their client’s case.
February 9, 2010, 10:08 pmSammy Finkelman says:
If there were too many grounds for automatic or near automatic recusal, it would be possible to do judge shopping by careful selection of attorneys.
February 9, 2010, 10:51 pmLarryA says:
IANAL. Is it routine for a single district judge to have three cases go to SCOTUS in the time involved?
I realize it’s Ninth Circuit.
February 9, 2010, 11:59 pmSCOTUSblog » Wednesday round-up says:
[...] make Quon a significantly less important case than it otherwise could have been.” Also at the Volokh Conspiracy, Eugene Volokh analyzes the complicated circumstances of seeking cert. in a prison strip-search [...]
February 10, 2010, 10:05 amJeff Walden says:
I’m also interested in the answer to LarryA’s question. I’ll hazard an attempt at analysis solely as a means to subscribe to comments.
Wikipedia claims there were 678 district judgeships in 2008. Let’s guess that number hasn’t changed much in the last 13 years (Judge Breyer was commissioned in 1997). In 13 years, let’s say 80 Court cases a year (I’m too lazy to look up the actual numbers, web searching failed to find a simple table of the numbers). So, roughly, if everything were completely average you’d see 1.5 Supreme Court cases per judgeship, or something like that. Based only on this wild estimation 3 seems maybe a little high, but not by very much — and who knows, if you want to assume anything about the expected intelligence of a judge given that his brother is a Supreme Court justice, and that more intelligent opinions are more likely to result in pleas making their way further up the judicial system, it seems even likelier one Breyer would see more of his decisions make their way to the other Breyer.
February 11, 2010, 6:38 amLarryA says:
Thanks for the answer.
Why I’m not a lawyer #247: In most professions the better your decisions are the less likely you are to be reviewed and possibly overridden.
February 11, 2010, 10:03 amJeff Walden says:
It’s entirely possible I’m guessing the wrong way how intelligence would affect review-ability; I have no legal training to actually know the answer. It merely seems to me that, all things considered, if the Supreme Court is going to review an issue, it’d prefer that it be well-explored and well-analyzed at the lower courts’ levels so there’s a better place to start. Then again, perhaps the bad-decision measure cuts further in the other direction than good-starting-point does in this direction — just making a guess.
February 11, 2010, 4:15 pm