The Supreme Court just agreed to hear Hamdan v. Rumsfeld, which involves a challenge to the military commissions set up to try enemy combatants; the issues are whether the commissions are duly authorized by statute or possibly by the President's inherent powers, whether the Geneva Convention bars certain procedures used by those commissions, and whether the Geneva Convention is even judicially enforceable by courts (on the theory that it's self-executing). The D.C. Circuit upheld the commissions (correctly, in my view), in an opinion that then-Judge John Roberts joined. Chief Justice Roberts has therefore recused himself from considering the case.
But here's an interesting tactical twist: Today's AP report contains the following line — "Hamdan's attorneys may ask Roberts to participate in the case to avoid a 4-4 tie." Why would Hamdan's lawyers want to do such a thing?
If Chief Justice Roberts recuses himself, and the Court ties 4-4, that will affirm the lower court decision. So if you're Hamdan's lawyer, you'd reason: If Roberts would have voted against us, and this produced a 5-4 result for the government, Roberts' recusal wouldn't help us, since we'd still lose 4-4. But if Roberts would have voted for us, at least in part, and this produced a 5-4 result for us, Roberts' recusal would hurt us. The chances of Roberts voting for us, given his vote below, are small, but not zero — the lower court decision rested on certain Supreme Court precedents that bound Judge Roberts, but perhaps Chief Justice Roberts might consider reversing or modifying some of those precedents. Or maybe we can talk him around with one more argument; or perhaps his new colleagues can talk him around.
Yet here's the downside: If Roberts isn't recused, he can talk around some of his colleagues. The Justices' attitudes aren't independent factors that simply need to be aggregated; each Justice can try to persuade the others, through questions at oral arguments, discussion at their end-of-the-week conference during which they vote (a very brief discussion, but one that might still affect people), and through the exchange of opinion drafts and related memos. If Roberts is recused, then he's supposed to not participate in these discussions, and not just not vote (and I'm pretty sure that this is in fact the practice, not just the theory). But if Roberts isn't recused, then he will participate, and maybe turn a 5-3 vote in favor of Hamdan into a 5-4 vote in favor of the government. And Roberts' status as Chief may be especially influential here, not just because he'd be able to assign the majority opinion, but also because Justices are probably a little more likely to accommodate the wishes of the Chief.
There's also one other downside, albeit hypothetical: If Justice O'Connor's replacement is confirmed after the argument in Hamdan but before the decision is handed down, then a Roberts vote for the government wouldn't mean a 5-4 pro-government decision as opposed to a 4-4 pro-government decision — it might mean a 4-4 pro-government decision as opposed to a 4-3 pro-Hamdan decision. This won't happen, of course, if Alito sails through in January, as seems likely. But who knows what the Senate will do? If I were Hamdan's lawyer, I'd be figuring out the latest time I can file a motion asking Roberts not to recuse himself (there's an answer to this, but I just don't know it), since I'd want to — if possible — wait until I see whether Alito (or someone else) is confirmed before the Hamdan oral argument.
Finally, one other twist: From the perspective of people who oppose the military commissions, a 5-4 Supreme Court decision to uphold the commissions is worse than a 4-4 vote that has the result of upholding the commissions. The former sets a binding precedent, and puts the persuasive weight of the Court's majority behind the commissions; the latter leaves the issue up in the air, at least for now.
But Hamdan's lawyers, even if they personally care mostly about the legal question, must focus on the welfare of Hamdan and Hamdan alone (at least unless they've somehow expressly agreed with Hamdan otherwise, though I'm not even sure to what extent they can do that). So they need to take the course that maximizes Hamdan's chances of winning, even if increasing his personal chances of winning by 1% hurts the broader anti-commission cause by considerably more.
Finally, a warning: These are just a few quick ruminations of a Court-watcher who isn't a Court litigator; I think they're right, but I'd love to be corrected if I'm mistaken.
UPDATE: Reader Dan Schmutter points out: "One other pro-recusal thought. As a member of the majority below, Roberts may be more persuasive with his colleagues having more familiarity with the record below than another member of the court simply reading the briefs for the first time."