Father on the Bench: Justice William R. Day and Kinship Recusal Clare Cushman (bio) As the Supreme Court entered the twentieth century, it had not established a consistent institutional practice or even guidelines for its members to decide when to recuse themselves from a case when there may be a conflict of interest with one of the parties involved. In the nineteenth century, it had been left up to the individual justice to choose whether to opt out when a relative, friend, or business ally brought a case before the high bench, and justices nearly always chose to opt in. When William R. Day took his seat on the Court in 1903, his benchmates still lacked a uniform protocol for disqualifying themselves when a family member was involved in a case. Justice Day thus had to chart his own path when his four sons—William Louis Day (1876–1936), Luther Day (1879–1965), Stephen Albion Day (1882–1950), and Rufus Spalding Day (1884–1963)—developed robust appellate practices and presented cases to the Supreme Court by written brief and oral argument. As a devoted father who wanted his sons to enjoy successful legal careers but who also sought to protect the integrity of the institution he served for 19 Terms, Justice Day often faced the difficult decision of whether to disqualify himself in a case. A close examination of the legal practices of the four Day sons is thus warranted to shed light on their father’s sense of judicial propriety and on the evolving conventions of kinship recusal practice at the Supreme Court during his tenure. History of Kinship Recusal Practice at the Supreme Court Congress passed its first recusal statute in 1792, but it only applied to lower federal courts.1 The statute was amended many times over the next century and a judge’s relative appearing as a party became grounds for a judge to disqualify himself,2 but it would not be until 1948 that federal disqualification law was amended to include the Supreme Court.3 Of course, the justices were familiar with both the compulsory terms and the practices of lower court judges, many previously having served on appellate courts. [End Page 62] To understand the conventions regarding kinship recusal at the Supreme Court when Day arrived at the Court, a comprehensive accounting of family members who practiced before the justices during its first century would be useful. Unfortunately, no such work exists. Based on anecdotal evidence, however, a few generalities emerge. In the nineteenth century, the elite legal world was tight-knit and it was not unusual for relatives of the justices—brothers, uncles, brothers-in-law, nephews—to appear before the Supreme Court. The only example found of a son is Charles L. Woodbury, who argued an admiralty jurisdiction case before his father in 1847: Justice Levi Woodbury ruled against him on circuit in Boston.4 The standards for judicial behavior regarding conflict of interest in that era were, by today’s standards, lax and the presence of a relative rarely triggered a recusal. For example, although Chief Justice Roger B. Taney’s brother-in-law, Baltimore attorney Francis Scott Key, appeared frequently before the Court, Taney almost never recused himself.5 Likewise, when George Ticknor Curtis, a Boston attorney, argued for Dred Scott’s freedom before the high court in 1857, his brother, Justice Benjamin Curtis, did not disqualify himself and cast one of two dissenting votes in favor of George’s client.6 The justices raised no questions about Justice Curtis’s possible bias and praised his brother’s performance.7 The most notable examples of nonrecusal in the nineteenth-century occurred when Justice Stephen J. Field participated in several cases that his brother, preeminent oral advocate David Dudley Field, argued in the wake of the Civil War. David appeared before the Supreme Court bench in several constitutionally significant cases about the imposition of national power over the defeated Confederacy.8 Not only did Justice Field consistently choose to sit, he even wrote the five-to-four decision in Cummings v. Missouri ruling in favor of his brother’s client, a priest who refused to take a loyalty oath to the...
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