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DUKE UNIVERSITY NEWS
Duke University Office of News & Communications
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FOR IMMEDIATE RELEASE: Wednesday, Sept. 29, 2004
CONTACT: Diana Nelson
(919) 613-7034
nelson@law.duke.edu
or Frances Presma
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presma@law.duke.edu

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JUSTICE STEPHEN BREYER SHOULD RECUSE HIMSELF FROM RULING ON CONSTITUTIONALITY OF FEDERAL SENTENCING GUIDELINES, DUKE LAW PROFESSOR SAYS

Note to editors: Erwin Chemerinsky can be reached for additional comment at (919) 613-7173 or chemerinsky@law.duke.edu.

Justice Stephen Breyer should recuse himself from ruling on two cases that will decide the constitutionality of federal sentencing guidelines, according to Duke University Law Professor Erwin Chemerinsky. The sentencing guidelines will come before the Court in a rare afternoon session on Oct. 4., the first day of its term, when oral arguments are presented in two cases, United States v. Booker and United States v. Fanfan.

“There’s no doubt that Stephen Breyer is one of the ‘parents’ of the federal sentencing guidelines,” said Chemerinsky, Alston & Bird professor of law at the Duke University School of Law and a noted constitutional scholar and Supreme Court advocate; he has two currently cases on the Court’s docket, as counsel and co-counsel. “When he was the Chief Counsel to the Senate Judiciary Committee, he played a key role with regard to the Sentencing Reform Act, [passed in 1984], which created the Sentencing Commission, which created the guidelines. Justice Breyer was also on the first Sentencing Commission that created the guidelines in the very structure at issue in these cases, though by that time he was a First Circuit judge. Should a justice who played such a key role in developing the sentencing guidelines now participate in considering their constitutionality?

“My own opinion is that he should recuse himself. I don’t think a member of Congress who participated in sponsoring a bill or drafting legislation should then, on the federal court, rule on the constitutionality of that, and I think Justice Breyer is in the same position.”

Justices can recuse themselves from cases at any time without having to give reasons.

“Under the Code of Judicial Ethics, judges have the duty to recuse themselves if there is a conflict of interest,” said Chemerinsky, noting that Justice O’Connor has often recused herself when her husband’s law firm has been involved in a case. Ethics are enormously important for judges, he said.

“If there’s any group in our profession or in society that we want to have impeccable ethics–to follow ethical principles without question–its judges. That’s most important for the Justices of the Supreme Court–they are the most visible judges we have in the country. They are the model for all other judges. I think any judge who has participated in a major role in drafting legislation should not be evaluating the constitutionality of that legislation. And I think here Justice Breyer is setting a model for other justices.

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