¶ 41. *629{dissenting). The per curiam correctly observes that Henley's motion for reconsideration is in essence a motion pursuing the disqualification of Justice Patience D. Roggensack. The motion asserts that the court's decision in State v. Henley1 violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution because:
(A) Our court has failed to provide any process for judicial review of Justice Roggensack's decision not to recuse herself.2
(B) Justice Patience D. Roggensack has inappropriately participated in the Henley decision.
¶ 42. Henley's motion thus asks the court to rule on the legality of Justice Roggensack's participation in deciding this case.3
*630¶ 43. Yet it is Justice Roggensack who provides the fourth, and deciding, vote for the unauthored per curiam denying Henley's motion to disqualify Justice Roggensack.
*631¶ 44. Justice Roggensack joins three colleagues, Justices David T. Prosser, Annette K. Ziegler, and Michael J. Gableman, to make four to rule on the motion to disqualify Justice Roggensack. Thus Justice Roggensack participates in a matter reviewing her own conduct. Without her vote there is no "per curiam," no "by the court." Without her vote there is no decision by the court.
¶ 45. Justice Roggensack fails to respect a bedrock principle of law that predates the American justice system by more than a century — "no man is allowed to be a judge of his own cause"4 — a principle recently *632repeated by Justice Anthony Kennedy, writing for a majority of the United States Supreme Court in the Caperton case.5
¶ 46. That Justice Roggensack participates in this motion for reconsideration is not a due process or ethical calculation but a mathematical one: one vote plus three votes equals an attempt to achieve a majority.6
*633¶ 47. The per curiam attempts to obfuscate Justice Roggensack's being the judge of her own cause by saying that she can participate because "all justices are affected equally by [the] determination of the scope of the court's power in this regard." Per curiam op., ¶ 9 (emphasis added). This attempt to obfuscate is not persuasive. Henley's motion focuses on one justice, Justice Roggensack.
¶ 48. It was Justice Roggensack's participation in a related case while she was a judge of the court of appeals that has stimulated the two recusal motions in Henley's case. It is Justice Roggensack who disqualified herself from the court's decisions on Henley's first recusal motion. It is Justice Roggensack who now decides that she can participate in deciding Henley's second motion to disqualify her; this second motion is the motion addressed in the per curiam. It is Justice Roggensack's refusal to disqualify herself in the Henley case that is challenged — no one else's. It is Justice Roggensack who is immediately and directly affected by Henley's recusal motions.
¶ 49. A justice's participation in a motion addressed to the court challenging that justice's refusal to disqualify is unprecedented in this court. In every case in which a motion has been addressed to the court seeking review of a justice's participation in a case, the challenged justice has not participated in deciding the motion.7
*634¶ 50. Over the years, several justices, including most recently Justice Ziegler and Justice Gableman, did not participate in the court's decisions on motions seeking court review of their decisions to participate in cases.8 Why is this case different from all other cases addressing recusal of a justice?
*635¶ 51. The answer, of course, is that this per curiam is not different. We need go no further for an illustration of the axiom that a justice does not participate in the court's decisions on motions seeking court review of that justice's decision to participate than Justice Roggensack's not participating in two orders of this court relating to the court's consideration of Henley's prior motion seeking court review of Justice Roggensack's decision to participate in the Henley case.9
¶ 52. Justice Roggensack did not participate in the Feb. 8, 2010, order ordering briefs on the issue of Justice Roggensack's disqualification.10 The order is attached.
¶ 53. Justice Roggensack did not participate in the May 24, 2010, order in which Justices Prosser, Ziegler, and Gableman declared the court had no power to disqualify Justice Roggensack.11 The order is attached.
¶ 54. Moreover, Justice Roggensack, without explanation, withdraws from participation in an unpublished order dismissing Yasmine Clark's motion to file an amicus brief to reconsider the Henley opinion, even though Justice Roggensack previously participated in granting Ms. Clark's motion to file the amicus brief.12
*636¶ 55. Acting inconsistently in deciding various issues in the Henley case, Justice Roggensack now participates in this per curiam decision that addresses a motion to reconsider the Henley case.
¶ 56. Justice Roggensack's inconsistent conduct in sometimes disqualifying herself in the Henley case, and other times not, conflicts not only with accepted practice in this court but also with Supreme Court Internal Operating Procedure II.L.l., which provides in part: "When a justice recuses or disqualifies himself or herself, the justice takes no further part in the court's consideration of the matter."13
¶ 57. We turn now to the writings of Justice Roggensack and three colleagues. Four justices, Justices Prosser, Roggensack, Ziegler, and Gableman, writing as a per curiam, reach the following conclusions:
(A) This court does not "have the power to disqualify a judicial peer from performing the constitutional functions of a Wisconsin Supreme Court Justice on a case by case basis."14
*637(B) "Henley has received due process."15
¶ 58. Justices Patience D. Roggensack, David T. Prosser, Annette K. Ziegler, and Michael J. Gableman decide that the court has no power to disqualify Justice Roggensack. They reach this decision without the benefit of briefs or oral argument. The court has never had the benefit of briefs or oral argument on this issue in any case. Thus the court deviates from the traditional adversarial system, the foundation of our legal system and jurisprudence.
¶ 59. The per curiam joined by these four justices essentially treats the due process claim challenging the participation of a justice as nonjusticiable but then, in an inconsistent shift, decides the due process issue.16 Thus Justice Roggensack participates in deciding the constitutional validity of her participation in the Henley case. Her participation is no longer limited to deciding the scope of the court's power to disqualify a judge. Justice Roggensack is a judge of her own cause.
¶ 60. Will Justices Prosser, Roggensack, Ziegler and Gableman comment on all recusal motions challenging a justice, thus rendering an advisory opinion even though they insist they lack the power to disqualify a justice?17 Or will they comment on only those *638recusal motions in which they can hold in favor of the challenged justice? And are they going to continue to comment on the grounds raised for disqualification without briefs or oral argument, as they do in the present case?
¶ 61. We three disagree with the conclusions that our four colleagues reach. The allegations in the motion and the conclusions in the per curiam are sufficient to justify briefs, oral argument, and full consideration. This motion should have been handled in an open, transparent, comprehensive manner.
¶ 62. In support of their conclusions, the four justices joining the per curiam substantially rely on and repeat much of Justice Roggensack's authored writing in State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863, in which Justices Prosser and Ziegler both joined and wrote separately. Justice Gableman withdrew from participation in Allen, which involved the defendant's challenge to Justice Gableman's participation.
¶ 63. We three wrote at great length in Allen, covering 87 printed pages in the Wisconsin Reporter. In addition, Justice Crooks wrote a six-page separate opinion. We concluded in Allen on the basis of our research (although we sought briefs) that the court not only had jurisdiction (power) to decide the disqualification of a justice, but also had the constitutional responsibility to decide the issue.18
¶ 64. In Allen, we wrote on all the topics addressed in the per curiam, including the court's juris*639diction to disqualify a justice or a judge; all the cases the per curiam cites; the subjective and objective grounds of disqualification under Wis. Stat. § 757.19(2); this court's prior cases deciding the due process and statutory rights of a litigant when a challenged justice or a judge participated in a matter; the recusal practices of the United States Supreme Court and supreme courts of other states; the Caperton decision; and due process standards of disqualification.
¶ 65. For ease of reference we include pinpoint citations to our analysis in Allen of cases discussed in the per curiam decision:
Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S. Ct. 2252 (2009): See Allen, 322 Wis. 2d 372, ¶¶ 88-98, passim.
*640In re Disciplinary Proceedings Against Crosetto, 160 Wis. 2d 581, 466 N.W.2d 879 (1991): See Allen, 322 Wis. 2d 372, ¶ 10 n.2, Appendix A.
Donohoo v. Action Wisconsin, Inc., 2008 WI 110, 314 Wis. 2d 510, 754 N.W.2d 480: See Allen, 322 Wis. 2d 372, ¶ 42.
State v. Harrell, 199 Wis. 2d 654, 546 N.W.2d 115 (1996): See Allen, 322 Wis. 2d 372, ¶¶ 86 n.54, 98 n.68.
City of Edgerton v. General Cas. Co. of Wis., 190 Wis. 2d 510, 527 N.W.2d 305 (1995): See Allen, 322 Wis. 2d 372, ¶¶ 76, 165.
State v. American TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 443 N.W.2d 662 (1989): See Allen, 322 Wis. 2d 372, ¶¶ 41, Appendix A.
Case v. Hoffman, 100 Wis. 314, 74 N.W. 220 (1898): See Allen, 322 Wis. 2d 372, ¶¶ 39-40, 73.
State v. Cannon, 199 Wis. 401, 226 N.W. 385 (1929): See Allen, 322 Wis. 2d 372, ¶ 83.
In re Kading, 70 Wis. 2d 508, 235 N.W.2d 409 (1976): See Allen, 322 Wis. 2d 372, ¶¶ 48, 53, 81.
Jackson v. Benson, 2002 WI 14, 249 Wis. 2d 681, 639 N.W.2d 545: See Allen, 322 Wis. 2d 372, ¶ 41 n.15.
Cheney v. United States Dist. Court for Dist. of Columbia, 541 U.S. 913 (2004): See Allen, 322 Wis. 2d 372, ¶¶ 60, 152-54.
Microsoft Corp. v. United States, 530 U.S. 1301 (2000): See Allen, 322 Wis. 2d 372, ¶ 149 n.18.
Hanrahan v. Hampton, 446 U.S. 1301 (1980): See Allen, 322 Wis. 2d 372, ¶¶ 59 n.37, 151 n.20.
Laird v. Tatum, 409 U.S. 901 (1972): See Allen, 322 Wis. 2d 372, ¶¶ 59 n.37, 151 n.20, 153 n.23.
*641Gravel v. United States, 409 U.S. 902 (1972): See Allen, 322 Wis. 2d 372, ¶¶ 59 n.37, 151 n.20.
Guy v. United States, 409 U.S. 896 (1972): See Allen, 322 Wis. 2d 372, ¶¶ 59 n.37, 151 n.20.
Ernest v. U.S. Attorney for S. Dist. of Alabama, 474 U.S. 1016 (1985): See Allen, 322 Wis. 2d 372, ¶¶ 58 n.36, 150 n.19.
Kerpelman v. Attorney Grievance Comm'n of Md., 450 U.S. 970 (1981): See Allen, 322 Wis. 2d 372, ¶¶ 58 n.36, 150 n.19.
Serzysko v. Chase Manhattan Bank, 409 U.S. 1029 (1972): See Allen, 322 Wis. 2d 372, ¶¶ 58 n.36, 150 n.19.
Jewell Ridge Coal Corp. v. Local No. 6167, 325 U.S. 897 (1945): See Allen, 322 Wis. 2d 372, ¶¶ 61, 140-48.
¶ 66. We have reviewed our Allen writings. We shall not rewrite our writings in Allen or attempt to summarize them. We stand by our Allen writings. We incorporate them in full into this dissent.
¶ 67. For the reasons set forth, we dissent from the denial of Henley's motion for reconsideration.
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State v. Henley, 2010 WI 97, 328 Wis. 2d 544, 787 N.W.2d 350.
The words "recusal" and "disqualification" are effectively synonymous and are often used interchangeably, as we use them here. Some distinguish between the two words, using "recusal" to refer to a judge's decision to stand down voluntarily and "disqualification" to refer to the statutorily or constitutionally mandated removal of a judge on the request of a moving party. See State v. Allen, 2010 WI 10, ¶ 9 n.1, 322 Wis. 2d 372, 778 N.W.2d 350.
See McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 232-34 (1934) ("[T]he Federal Constitution prohibits state courts of general jurisdiction from refusing [to enforce a federal right] solely because the suit is brought under federal law.... A state may not discriminate against rights arising under federal laws."). See also Terry v. Kolski, 78 Wis. 2d 475, 482, 254 N.W.2d 704 (1977); State v. Allen, 2010 WI 10, ¶¶ 46-47, 322 Wis. 2d 372, 778 N.W.2d 863 (Abrahamson, C.J., Bradley, J., & Crooks, J., lead opinion).
Here is the history of Henley's motions to recuse Justice Roggensack. Henley initially addressed a motion only to Justice Roggensack to recuse herself on the basis of Wis. Stat. *630§ 757.19(2)(e) (the justice had previously handled the action or proceeding at issue while judge of an inferior court) and (2)(g), (subjective bias) and SCR 60:04(4) (Code of Judicial Conduct). Henley claimed that Justice Roggensack should not be sitting on his case because she sat on the "same case" when she was a judge on the court of appeals.
Justice Roggensack denied the motion, concluding that she is not precluded from participation in the present case under Wis. Stat. § 757.19(2)(e) and (g) or SCR 60.04(4). For the memorandum decision, see State v. Henley, 2010 WI 12, 322 Wis. 2d 1, 778 N.W.2d 853.
Henley then addressed a motion to the court to disqualify Justice Roggensack on the basis of Wis. Stat. § 757.19(2)(e) and (2)(g). The court ordered the State of Wisconsin to respond to Henley's motion and memorandum in an unpublished order dated Feb. 8, 2010, which is attached for reference. Justice Roggensack did not participate in this Feb. 8, 2010, order.
The court then issued the attached unpublished order dated May 24,2010, addressing Henley's motion addressed to the court. Justice Roggensack did not participate in this May 24, 2010, order. The order stated, among other things, that the justices divided 3-3 and that "[n]o four justices have agreed to grant Henley's motion to the court to disqualify Justice Roggensack on grounds of Wis. Stat. § 757.19(2)(e)." See May 24, 2010, order attached hereto.
In the May 24, 2010, court order, Justice David T. Prosser, Justice Annette K. Ziegler, and Justice Michael J. Gableman concluded that the court does not have the power to disqualify a fellow justice, referring to the writings of Justices Prosser, Roggensack, and Ziegler in State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863. Chief Justice Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks also referred to their separate writing in State v. Allen, concluding that it appears the court has the power (jurisdiction) to disqualify a *631justice and that this court has exercised its jurisdiction to decide disqualification motions against individual justices under § 757.19(2).
In the motion presently before the court, Henley again asks the court to disqualify Justice Roggensack from participating in his case. This motion offers new reasons to disqualify Justice Roggensack based on the reasoning in the court's opinion deciding the merits of Henley's case.
See, for example, Justice Scalia's reference to "the wisdom of the ancient maxim 'aliquis non debet esse Judex in propria causa' — no man ought to be a judge of his own cause," in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 329 n.* (2007) (Scalia, J., concurring) (quoting Dr. Bonham's Case, 77 Eng. Rep. 638, 646, 652 (C.P 1610)); and Ex parte Ah Oi, 13 Haw. 534, 1901 WL 1300, *14 (1901) (Galbraith, J., dissenting) (" 'No man shall be a judge in his own cause' is a maxim that is ancient in use and of universal application in Anglo-Saxon communities.").
See also In re Murchison, 349 U.S. 133, 136 (1955):
To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that 'Every procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear, *632and true between the State and the accused denies the latter due process of law.' Tumey v. State of Ohio, 273 U.S. 510, 532, 47 S. Ct. 437, 444, 71 L. Ed. 749. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way 'justice must satisfy the appearance of justice.' Offutt v. United, States, 348 U.S. 11, 14, 75 S. Ct. 11, 13.
Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2265 (2009) (reversing a judgment of the Supreme Court of Appeals of West Virginia on the grounds that the Due Process Clause of the Fourteenth Amendment to the United States Constitution was violated when a justice in the majority participated in the case when objective standards required recusal).
See Justice Crooks' separate writing in State v. Allen, 2010 WI 10, ¶ 190, 322 Wis. 2d 372, 778 N.W.2d 863, commending Justice Gableman on withdrawing from the Allen decision, which involved a disqualification motion addressed to Justice Gableman.
In Wisconsin, if a justice should have been disqualified from considering the case and nevertheless participates, the decision is void. State v. Am. TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 179, 443 N.W.2d 662 (1989).
The defendant's same due process arguments about the court's decision apply to the court's denial of his motion for reconsideration:
(A) Justice Roggensack has inappropriately participated in the denial of Henley's motion for reconsideration.
(B) The per curiam decision explicitly declares that no process exists in this court to review a single justice's decision not to recuse herself on due process grounds short of removal from *633office through constitutional means or judicial discipline. Per curiam, ¶¶ 24-25.
In In re Disciplinary Proceedings Against Crosetto, 160 Wis. 2d 581, 466 N.W.2d 879 (1991), upon which the per curiam relies, no motion was addressed to the court. For a discussion of In re Disciplinary Proceedings Against Crosetto, 160 Wis. 2d *634581, 466 N.W.2d 879 (1991), and a full reprint of In re Disciplinary Proceedings Against Crosetto, see State v. Allen, 322 Wis. 2d 372 at ¶ 10 n.2, Appendix A.
See Krier v. Vilione, Nos. 2006AP1573 & 2006AP2290 (motions filed challenging Justices Ziegler and Gableman; neither justice participated in court order ruling on motion.)
See the unpublished court orders in the following cases, in which the challenged justice did not participate in the court's order about disqualifying the justice:
State v. Carter, No. 2006AP1811-CR, unpublished order (Wis. S. Ct. Mar. 1, 2010) (Justice Gableman not participating)
State v. Cross, No. 2009AP3-CR, unpublished order (Wis. S. Ct. Nov. 11, 2009) (Justice Gableman not participating)
State v. Dearborn, No. 2007AP1894-CR, unpublished order (Wis. S. Ct. Mar. 1, 2010) (Justice Gableman not participating)
State v. Jones, No. 2008AP2342-CR, unpublished order (Wis. S. Ct. Dec. 16, 2009) (Justice Gableman not participating)
State v. Littlejohn, No. 2007AP900-CR, unpublished order (Wis. S. Ct. Mar. 1, 2010) (Justice Gableman not participating)
State v. McGuire, No. 2007AP2711-CR, unpublished order (Wis. S. Ct. Oct. 2, 2009) (Justice Gableman not participating)
State v. Sveum, No. 2008AP658-CR, unpublished order (Wis. S. Ct. Dec. 21, 2009) (Justice Gableman not participating)
See the following cases in which the challenged justice did not participate in the court's decision determining the validity of a decision in which the challenged justice participated:
State v. American TV, 151 Wis. 2d 175, 443 N.W.2d 662 (1989) (Justice Bablitch not participating)
City of Edgerton v. Gen. Cas. Co., 190 Wis. 2d 510, 527 N.W.2d 305 (1995) (Justice Geske not participating)
*635Jackson v. Benson, 2002 WI 14, 249 Wis. 2d 281, 639 N.W.2d 545 (Justice Wilcox not participating)
Donohoo v. Action Wis., Inc., 2008 WI 110, 314 Wis. 2d 510, 754 N.W.2d 480 (Justice Butler not participating)
See note 3 above.
See note 3 above.
See note 3 above.
See unpublished order in State v. Henley, of even date as this per curiam, dismissing Yasmine Clark's motion to reconsider the Henley opinion. Previously Justice Roggensack participated in granting Yasmine Clark's motion for leave to file a *636non-party brief. See State v. Henley, No. 2008AP697, unpublished order (Wis. S. Ct. Dec. 8, 2010).
For a discussion asserting that due process should be extended so that once a judge has recused himself or herself, the judge may no longer affect the case, see S. Matthew Cook, Note, Extending the Due Process Clause to Prevent a Previously Recused Judge from Later Attempting to Affect the Case from Which He was Recused, 1997 B.Y.U. L. Rev. 423.
Per curiam opinion joined by Justices Prosser, Roggensack, Ziegler, and Gableman, ¶¶ 2, 25, 39.
As we stated in our writing in State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863, on the basis of our own research we concluded that the court had the power to disqualify a judicial peer, but we asked for briefs and oral argument on this issue.
Per curiam opinion joined by Justices Prosser, Roggensack, Ziegler, and Gableman, ¶¶ 2, 32-35, 39.
As Justice Crooks wrote in Allen, 322 Wis. 2d 372, ¶ 188, "[t]he writings by Justices Roggensack and Prosser, thus, essentially treat the due process claim as nonjusticiable."
Compare Justice Prosser's separate writing in Allen, 322 Wis. 2d 372, ¶ 250, suggesting solutions such as personal and collective persuasion of a colleague who refuses to withdraw, delay of a case, or involvement of the Judicial Commission, with his position in the order in State v. Henley (attached) suggesting an advisory opinion.
For a proposed resolution before the American Bar Association recommending that state supreme courts clearly articulate procedures for judicial disqualification determinations, including prompt review by another judge or tribunal, or as otherwise provided by law or rule of court, of denials of requests to disqualify a judge, see:
*639AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON JUDICIAL INDEPENDENCE REPORT TO THE HOUSE OF DELEGATES RESOLUTION
RESOLVED, That the American Bar Association urges states to establish clearly articulated procedures for:
A. Judicial disqualification determinations; and
B. Prompt review by another judge or tribunal, or as otherwise provided by law or rule of court, of denials of requests to disqualify a judge.
FURTHER RESOLVED, That the Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Professional Discipline should proceed on an expedited basis to consider what amendments, if any, should be made to the ABA Model Code of Judicial Conduct or to the ABA Model Rules of Professional Conduct to provide necessary additional guidance to the states on disclosure requirements and standards for judicial disqualification.