PART VIII — DELIBERATION AND DISPOSITION
Rule 70. Submission, conference, and recusal
Under submission for decision
A case is under submission for decision at the time fixed by Rule 68(h). This phrase describes the decisional stage and is distinct from a filing at Submitted status in the ECMS.
Record at submission
The Court decides on the authenticated record, briefs, argument, and material of which it may lawfully take notice. After submission, no party may supplement the merits except under Rule 65(e), in response to a Court order, or on a motion to reopen submission.
Reopening and reargument
The Court may reopen submission to:
request supplemental briefing on a specified issue;
obtain a necessary correction or portion of the record;
address a material change in law, fact, office, or mootness;
order reargument after a change in Court membership or material technical failure; or
afford notice on a ground the Court is considering on its own initiative.
An order reopening submission must identify the issue, permitted material, schedule, and whether the case will be resubmitted automatically.
Decisional conference
Only eligible Justices and Court personnel whose duties require attendance may participate in a decisional conference. Tentative votes, draft opinions, assignment discussions, and internal communications are deliberative and nonpublic. A Justice or employee must not disclose them except as lawfully necessary to prepare, file, or implement the Court’s decision.
Duty to consider disqualification
Each Justice must continuously consider whether law, the Code of Judicial Conduct, a personal or organizational interest, prior participation, nonpublic knowledge, bias, or another circumstance requires disqualification. A Justice must disclose on the docket a fact that the Justice reasonably believes the parties may need to evaluate disqualification, unless disclosure itself would violate law; a protected disclosure may be made through a safe procedure ordered by the Court.
Motion to recuse
A motion to recuse must:
be filed no later than the moving party’s principal brief;
identify the Justice, the specific ground, when it became known, and the supporting record;
include any necessary declaration or authenticated material; and
avoid speculation, personal attack, or a request based only on a Justice’s prior legal ruling.
A later motion is permitted only for a ground not known and not reasonably discoverable earlier, and must be filed within two days after discovery. The motion does not stay the case unless ordered.
Initial decision and review
The challenged Justice initially decides disqualification and should state reasons sufficient to permit review without revealing protected deliberations. If the motion is denied, the movant may request review by the other eligible Justices within two days after entry of the denial. Review is ordinarily confined to the material before the challenged Justice; the reviewing Justices may request a response or additional facts. The challenged Justice does not participate in that review.
Remittal
A disqualification may be remitted only when governing law and the Code of Judicial Conduct permit, after full disclosure and written agreement by every party outside the Justice’s presence. No party may be pressured to agree. A ground made nonwaivable by law cannot be remitted.
Effect of recusal
A recused Justice:
does not vote, attend conference, assign an opinion, or receive a new draft in the matter;
must not access restricted material except as strictly necessary to preserve or transfer an existing official record;
is not counted as a participating Justice; and
may identify the recusal publicly but must not disclose deliberations.
Technical access that cannot immediately be removed does not authorize legal access. Rule 34(h) governs restricted material.
No quorum
If disqualification leaves fewer than three eligible Justices, Rule 10(e) controls. Neither necessity, consent, nor an administrative assignment may create a quorum unless governing law authorizes participation.