Let Judges Review Supreme Court Justices’ Recusal Decisions

Multiple US Supreme Court justices have faced questions recently about whether they should have heard certain cases based on conflicts of interest arising from their personal business dealings or relationships. Yet, the process used by the court to decide if a justice should sit on a case—the recusal process—leaves it completely up to the justices to decide which cases they hear.

If the court or Congress decide to impose new rules in this area, they should consider implementing an external review process for the justices’ recusal decisions.

Essentially, the court’s practice allowing justices to resolve their own recusal questions has merit—the court is less effective when less than the full nine hear a matter.

But the court’s critics are also correct that allowing justices to decide these matters for themselves ought to be viewed skeptically—especially given the current divisive political moment.

I suggest that the Supreme Court authorize a panel of the seven most senior chief judges of the US circuit courts to hear appeals by parties to a case from individual recusal decisions of any Supreme Court justices. Decisions from that panel should be subject only to appeal to the full Supreme Court.

The advantage of sending a matter to an outside panel of chief judges is that they are selected by a complex seniority system that is hard to manipulate. The chief judges of each circuit are those who have the most seniority, but are under 65, have served for more than a year, and have never been chief judge before.

Just as importantly, chief judges in the courts of appeals are typically too old to be considered for promotion to the Supreme Court—other than Justice Stephen Breyer, none have been elevated in recent memory. This creates a pool of judges who are experienced, unbiased, and effectively randomly selected.

This process makes the least change needed. Justices make the initial recusal decision individually which can be reviewed by the senior judges below the Supreme Court.

Two alternative options have been widely circulated, but neither is very good.

The first option is subjecting justices to the same ethical code, including recusal standards, as every other federal judge. The advantage of this position is consistency of application to all federal judges.

The problem with this rule is that the Supreme Court is really different from other courts. It sits almost exclusively en banc—as a full court of nine—and the disqualification of a single justice hinders its function and biases its outcomes. This is unlike every other federal court, where judges are regularly replaced and are, to some extent, considered interchangeable.

Applying the same rules to different situations rarely work, even if it does make things more consistent. Just as almost all federal ethical rules do not apply to the president—since ultimately, the president cannot be replaced for important decisions—the same could be said for the justices. To recuse necessarily means to disrupt the business of the Supreme Court, and therefore the rules surrounding its recusals must be specifically tailored.

The second position—currently the rule—is that each justice ought to decide for themselves how the recusal statute applies to them.

As the court recently said in a letter to Senate Judiciary Committee Chairman Dick Durbin, D.-Ill., if the Supreme Court as a whole were to decide whether specific justices can sit on specific cases, it would risk creating “an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.”

On the other hand, anyone with ethical awareness understands that allowing someone—even a justice—to decide for themselves how the law should affect them is a bad idea. As the old Latin maxim relays, nemo iudex in causa sua, “no one should be a judge in their own case.” Indeed, outside of recusal, all decisions of any individual justice are subject to review by the whole court. For good reasons, people are skeptical of this position.

We can create a more ethical, less political, and more judicial process than the one currently in place. That would be a good idea.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Michael J. Broyde is a professor of law and teaches legal ethics at Emory University.

Write for Us: Author Guidelines