Will Justice Sotomayor Recuse in Turkmen?

As Marcia Coyle reported last week in The National Law Journal, and as I predicted back in December, the Solicitor General has filed a petition for certiorari in Ashcroft v. Turkmen, challenging the Second Circuit’s June 2015 ruling recognizing a Bivens cause of action for (and rejecting a qualified immunity defense to) a putative class action arising out of the post-September 11 roundup and detention of certain groups of Muslim and Arab immigrants in and around New York. (Per Marcia’s story, this raises the somewhat awkward specter of the Obama administration defending then-Attorney General Ashcroft.) The Solicitor General’s petition challenges the ruling below on three grounds: The existence of a Bivens cause of action; the defendants’ entitlement to qualified immunity; and whether the allegations in the complaint are sufficiently plausible to satisfy Iqbal.

Turkmen is the seventh post-September 11 civil case challenging US counterterrorism policies in which the US government has sought certiorari (in chronological order, the others are Padilla IIqbalDoD v. ACLUHumanitarian Law Projectal-Kidd, and Clapper v. Amnesty Int’l). And the Solicitor General’s track record is impressive: In each of the six prior cases, not only did the Supreme Court grant certiorari, but the decision below was either reversed or vacated. Given that trend line, and given that the full Second Circuit divided 6-6 on the government’s petition for rehearing en banc, it might be easy to assume that history will repeat itself in Turkmen.

But, putting the merits to the side for a moment, as I explain in the post that follows, whether the government’s petition is granted may well depend upon whether or not Justice Sotomayor recuses. 

Here’s the issue: While she was on the Second Circuit, then-Judge Sotomayor was assigned to a three-judge panel that heard cross-appeals in an earlier iteration of the Turkmen case, and sat for the oral argument on February 14, 2008. But by the time the decision was handed down on December 18, 2009, she had been elevated to the Supreme Court, and thus did not participate in the ruling. (As the * footnote explains, “The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter.”)

I don’t think there’s any dispute over whether Justice Sotomayor must recuse; even if the Justices are bound by 28 USC § 47 (and they may not be), that provision provides that “No judge shall hear or determine an appeal from the decision of a case or issue tried by him.” It seems to me that a natural reading of this provision does not apply to cases in which the judge is not part of the formal decision and/or judgment, as then-Judge Sotomayor was not in Turkmen. But there’s a huge chasm between when federal law mandates recusal, and when judges will recuse voluntarily. And, at least anecdotally, Justice Sotomayor’s practice to date has tended to err on the side of caution when it comes to recusing from matters in which she was even peripherally involved while serving on the Second Circuit. So all things being equal, it wouldn’t surprise me if she did indeed recuse in Turkmen.

As for why Justice Sotomayor’s participation is potentially so significant to whether the Court takes the case, here’s the math problem: If Justice Sotomayor participates, then there would be an eight-Justice Court, meaning that the government would need at least one of the Democratic appointees (Justices Ginsburg, Breyer, Sotomayor, or Kagan) to side with it on the merits in order to reverse the Second Circuit. It’s certainly possible that one of those four might be sympathetic to the government on at least one of the questions presented (perhaps Justices Breyer and/or Kagan on the qualified immunity issue), but it strikes me as not especially likely.

But if Justice Sotomayor recuses, then Turkmen would be heard and decided by a seven-Justice Court — and the government could prevail simply by garnering the votes of the four Republican appointees (Chief Justice Roberts and Justices Kennedy, Thomas, and Alito). And although it’s also possible that one of those Justices will be un-sympathetic to the government on at least some of the questions presented (perhaps Justice Kennedy on the Bivens issue), it strikes me as highly unlikely that any of the four would vote against the government on all three questions, which is what would have to happen for the government to lose before a seven-Justice Court.

Thus, whether the Court even grants certiorari in Turkmen may turn entirely on whether Justice Sotomayor recuses. If she doesn’t, then the Justices might deny simply to avoid the prospect of a 4-4 split. But if she does, then it seems likely to me that the Court will take the case, and, as in all of the previous government cert. petitions in post-9/11 civil cases arising out of counterterrorism policies, will reverse the Court of Appeals and side with the government. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).