Last week, we reviewed the Court’s experience with certified questions from the Seventh Circuit. This week, we begin our look at a different question: the Court’s history with recusals.
Recusals are particularly important on the Illinois Supreme Court because unlike the other Court we follow, the California Supreme Court, there is no provision for replacing Justices who recuse. Moreover, pursuant to Article VI, Section 3 of the state constitution, the Court can’t decide an issue without the affirmative votes of at least four Justices, so the more Justices who recuse, the more likely it becomes that the Court will be unable to make a decision at all – so recusals can be a high stakes matter in Illinois. Justices recuse for any number of reasons: a financial or personal interest in a party, or cases which came before the Appellate Court where the Justice served before joining the Supreme Court. Ultimately, anything that could reasonably cause people to question a Justice’s impartiality is potentially grounds for recusal.
In 2000, Justice Rathje led the Court, recusing in three civil cases. Justices Miller, Freeman, Harrison and Bilandic recused in one case each. In 2001, Justice Garman led, recusing in five civil cases. Justice Thomas recused three times, and Justices McMorrow, Freeman and Harrison recused once each. In 2002, Justice Rarick – new to the Court, and therefore with several pending cases from his old court – recused nine times. Justice Garman recused in three cases, Justices McMorrow and Freeman recused in two cases each, and Justices Kilbride, Thomas, Harrison and Fitzgerald in one case apiece. In 2003, Justice Rarick recused in fifteen civil cases. Justices McMorrow and Thomas recused once each. In 2004, Justices Garman and Kilbride recused once apiece, and Justices McMorrow, Freeman, Thomas and Fitzgerald recused once. Finally, in 2005, new Justice Karmeier recused in six cases, Justice Thomas recused four times, and Justices Garman, Freeman and Kilbride recused once each.
In Table 516, we review the vote totals for the prevailing party – given the four-votes-to-a-decision constitutional requirement, an important measure of whether recusals make a difference in the result. Generally, the answer is no. In 2000, cases with at least one recusal got six votes four times. Recusal cases got four votes twice and five votes once. In 2001, ten recusal cases received six votes, and one got five votes. In 2002, ten cases got six votes, five got five and two got four. In 2003, thirteen cases got six votes in recusal cases. Three got five votes and two got four. In 2004, seven cases got six votes and one got four. Finally, in 2005, eleven cases wound up with the prevailing party getting six votes. Three got five votes and three got four.
And finally, we turn in Table 517 to the years 2006-2011. In 2006, new Justice Burke recused in fourteen civil cases. Justice Thomas recused seven times. Justice Garman recused three times and Justices Freeman and Karmeier once each. In 2007, Justice Burke led, recusing eight times. Justice Thomas recused seven times. Justices Freeman and Kilbride recused four times apiece, and Justices Karmeier and Fitzgerald recused one time each. In 2008, Justice Burke recused in four civil cases. Justice Thomas recused three times, Justices Kilbride and Fitzgerald twice each, and Justice Freeman once. In 2009, Justices Burke and Freeman recused three times apiece. Justice Thomas recused in two civil cases, and Justices Kilbride and Fitzgerald recused once each. In 2010, Justice Thomas was the only member of the Court recusing in more than one civil case – he had two recusals. Justices Burke, Garman, Freeman, Kilbride and Karmeier recused once apiece. Finally, in 2011, new Justice Theis recused four times. Justice Kilbride recused three times. Justices Freeman, Thomas and Karmeier each recused once.
Join us back here tomorrow as continue our look at the Court’s history with recusals.