Aetna Life Insurance Co. v. Lavoie
In Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 1587-88, 89 L.Ed.2d 823 (1986), the Supreme Court expressly declined to address this question. 475 U.S. at 827 n. 4, 106 S.Ct. at 1588 n. 4.
The Court first held that one justice of the Alabama Supreme Court was disqualified, by virtue of his pecuniary interest in the outcome of the case before him, but that there was no constitutional bar to the participation of the other eight justices. Id. at 825, 827, 106 S.Ct. at 1587, 1588.
Because the disqualified justice's vote was decisive, and because he wrote the majority opinion, there was no question that the Alabama Supreme Court's decision could not be permitted to stand. Id. at 828, 106 S.Ct. at 1588-89.
However, the majority expressed no view as to whether the same result would have been required if the biased justice's vote had not been decisive. Id. at 827 n. 4, 106 S.Ct. at 1588 n. 4 (citing Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)).
While concurring in the majority's opinion, Justice Brennan stated his view that the participation of one biased member would require that the tribunal's decision be vacated regardless of whether that member's vote was decisive. Referring to the collective process of deliberation, Justice Brennan observed that:
While the influence of a single participant in this process can never be measured with precision, experience teaches us that each member's involvement plays a part in shaping the court's ultimate disposition. The participation of a judge who has a substantial interest in the outcome of a case of which he knows at the time he participates necessarily imports a bias into the deliberative process. This deprives litigants of the impartiality that is the fundamental requirement of due process. Id. at 831, 106 S.Ct. at 1590.6