Recusal by a judge for a conflict of interest has always been up to the judge himself. In rare cases, an appellate court can remove a lower court judge from a case due to a conflict. But a Supreme Court has never allowed colleagues to remove a peer from a case. Never until now, that is. On the eve of Thanksgiving, the divisive Michigan Supreme Court adopted a startling, first-of-its-kind rule to allow removal of a peer from deciding a case.

The genesis for this rule was the defeat of the conservative Chief Justice Clifford Taylor by a Democratic challenger Diane Hathaway, on the coattails of the Democratic landslide in November 2008. This tilted the court to a 4-3 liberal majority. A libertarian candidate split the vote and the Democrat won with less than 50%. Even the ordinarily liberal Detroit Free Press had endorsed the conservative chief justice in this election, noting how little the Democratic challenger had provided as an alternative.

Elections have consequences, but no one expected the justices to start throwing each other overboard. When the Michigan Supreme Court adopted a rule to permit that, all three justices on the right side of the court issued passionate dissents. Specifically, the new rule allows justices to disqualify a colleague from deciding a case.

The ruling itself is less than four pages, and the relevant change is less than one. But this sparked over 50 pages of acrimonious opinions divided along ideological groups, which are attached to the new rule. http://courts.michigan.gov/supremecourt/Resources/Administrative/2009-04-112509.pdf

Many of the most important court decisions are made by only a one-vote margin, both at the level of the U.S. Supreme Court and at many state Supreme Courts. Most decisions in same-sex marriage cases are by only one vote. The litigation over the outcome of the presidential election in 2000 between George W. Bush and Al Gore was decided by only one vote in favor of Gore by the Florida Supreme Court, then on appeal by only one vote in favor of Bush by the U.S. Supreme Court.

But under this new rule in Michigan, a clever lawyer can seek disqualification of a justice who is likely to vote against him. If that Justice refuses to recuse himself, then the lawyer can bring a motion before the other justices to force his recusal anyway.

A lawyer expecting to lose a case by a 4-3 margin could move for the recusal of two justices who are against his side and, if they refuse to recuse themselves, then he could ask the other five to force the recusal of those two justices. The lawyer would enjoy a 3-2 advantage with the remaining five, and after they recuse the other two, he could win a 3-2 victory in a case that would have been decided 4-3 against him. Such tactics would surprise no one in, for example, an attempt to impose same-sex marriage through judicial supremacy.

In dissent from adoption of this new rule, a conservative Michigan Justice remarked how a former chief justice “once said that the members of this Court are seven people on a boat in stormy seas. This provision allows those seven people to throw one another overboard.”