Supreme Court Conservatives Are Less Likely to Explain Recusals

US Supreme Court conservatives, unlike their liberal colleagues, routinely decline to explain why they recuse from cases nearly a full term after all of the justices embraced a code of conduct aimed at improving transparency.

Chief Justice John Roberts and the other conservatives in the court’s majority opted out of hearing matters more than 60 times since mid-November while liberals cited the code in about 20 instances, an analysis of court data shows. Recusals mostly occurred in petitions denied review and included in public orders.

The liberals’ short explanations typically cite the federal recusal law and the ethics code provision. A description of the conflict highlights prior government or judicial service.

There’s no obvious reason for the ideological divide over providing explanations. But ethics and legal scholars said conservative justices may feel under siege by reports of ethics lapses and calls for recusals, and that providing explanations might be used to fuel strategic behavior from litigants and inflame controversy.

“Conservatives feel like the code of conduct has been weaponized by the left to attack them,” said Charles Geyh, a professor and ethics scholar at the Indiana University Maurer School of Law.

Providing Explanations

Following public concern that recusal practices were opaque and overdue for change, the non-binding code of conduct mainly reaffirmed practices followed by the judiciary, including the Supreme Court.

The code of conduct provides a number of instances when the justices should disqualify themselves, including when impartiality “might reasonably be questioned.” Recusals are decided by individual justices and explanations are voluntary. The code lists disqualification criteria but disclosing grounds for recusal hasn’t historically been the norm.

An account of why justices opt out would help demystify the court’s decision-making and build trust with the public on ethics, scholars said.

Democratic-backed legislation would require such explanations. A bipartisan presidential commission appointed by President Joe Biden said recusal explanations “could serve as guidance” and “might also clarify whether the Justices use the same standards for recusal on recurring issues.”

And an April 2023 statement by the justices on ethics described the voluntary process now used by liberal members in providing information beyond simply noting they’d recused. But the statement also said explanations can be “ill-advised” in certain instances.

“Examples include circumstances that might encourage strategic behavior by lawyers who may seek to prompt recusals in future cases,” the justices said.

Lawyers are always going to be looking for a way to increase the chance of success for their clients, creating concerns over gamesmanship, said Renee Knake Jefferson, the chair of legal ethics at the University of Houston Law Center.

The response should be to create structures that are acceptable to those in both the majority and the minority, not “forgo measures that would enhance accountability, increase public trust, and ensure a fair process for litigants,” Jefferson said.

She noted that state supreme courts have different mechanisms for dealing with ethical dilemmas that the US Supreme Court could look to. In Texas, for example, recusal requests can be referred to the full court.

“It would behoove the court to look seriously at how other high courts in the US deal with the recusal question rather than dismiss it out of hand,” said Russell Wheeler, a Brookings Institution fellow.

In releasing its code, the court said it would assess whether it needed additional resources to review recusal and other ethics issues. The court didn’t respond to a request for comment when asked if it has taken any such step.

Justices’ Recusals

The Supreme Court receives roughly 5,000 to 6,000 petitions seeking review annually, and nearly all are denied early on.

Recusals ranged from more than 230 in the 2020 term to nearly 120 in the current one through Aug. 22, according to the analysis of data compiled by Bloomberg Law and watchdog Fix the Court.

Conservative Justices Neil Gorsuch and Amy Coney Barrett each recused roughly a dozen times since the code was adopted, while Justice Samuel Alito’s total nearly doubled that. Roberts and Brett Kavanaugh each registered under 10 recusals, while Clarence Thomas had just a handful.

Justices typically recuse for a limited number of reasons, which the court has said “will be obvious” in many instances. This includes prior work as a circuit judge or in the Office of the Solicitor General, a presidential administration’s top lawyer at the Supreme Court.

Perhaps obvious to parties, the justices, and other insiders or court watchers, the reasons for recusal aren’t apparent to the public without some digging.

For instance, many of Alito’s recusals historically are due to stock ownership. Those investments are listed on financial disclosures and can be cross-referenced with the case to determine a potential conflict.

Gorsuch has recused from a death penalty appeal in Glossip v. Oklahoma, a rare example a justice stepping away from a granted petition. But the public notice in January 2024 didn’t say he’d previously heard an iteration of the case out of Oklahoma while sitting on the US Court of Appeals for the Tenth Circuit, or that he was a former appellate judge, Fix the Court noted.

Like Gorsuch at the Tenth Circuit, recusals involving Kavanaugh and Barrett are commonly tied to their previous work as judges on the DC and Seventh Circuits, respectively. Roberts’ was often a party named in a case, Fix the Court showed. While information about lower court roles is public, it can require researching individual cases to determine a likely reason.

The court’s liberals are more transparent, especially Justices Elena Kagan and Ketanji Brown Jackson. Kagan was the first to cite the Supreme Court code, doing so nearly a dozen times over potential conflicts stemming from her service as US solicitor general in the Obama administration. She notes prior government employment.

Jackson’s recusals also were explained. She cited prior judicial service and another disclosing she or relatives were or had been involved in a case as an attorney. Justice Sonia Sotomayor, Kagan, and Jackson cited the code for being parties to a proceeding in a May 28 order.

Under Attack

Virginia Canter, chief ethics counsel at the watchdog group Citizens for Responsibility and Ethics in Washington, said previous work and financial conflicts make for easy recusal decisions.

The tricky question is whether recusal is required under a “catch-all” provisions that requires a justice to disqualify if their impartiality “might reasonably be questioned,” Canter said.

Alito cited that provision when he wrote to members of Congress that he wasn’t recusing from Jan. 6 cases based on reports controversial flags had flown at his residences.

Saying the flags were placed by his wife, Alito said he was “confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that” the events “do not meet the applicable standard for recusal.”

John Malcolm of the Heritage Foundation said the calls for conservative justices to recuse and reports of alleged ethical lapses may be one reason why they aren’t providing an explanation.

Offering reasons for stepping away can be “dangerous” because it could provide a basis for future attacks if one justice doesn’t think a situation requires recusal but another does, he said.

“If I were one of the conservative justices and taken a beating in the press for everything I have done or not done, I suppose my instinct would be: ‘I will just make my decision and announce what my decision is,’” Malcolm said. “‘I don’t owe anybody any explanation for why I made that decision.’”