When Justices Recuse, and When they Refuse

By Samuel Morse

Over the summer, Justice Ruth Bader Ginsburg made the following comments about then presidential-candidate Donald Trump: “He is a faker…He has no consistency about him. He says whatever comes into his head at the moment.  He really has an ego. …How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

These comments were labeled by conservatives and liberals alike as wildly inappropriate, because of her position as a Supreme Court justice.

Historically, justices have refrained from offering their opinions on public figures and salient events to avoid the appearance of bias or prejudice on issues that could come before the Court (although at times they have offered glimpses).  The perceived role of a judge is that of a neutral arbiter, with no personal or financial stake in the outcome of any case, and when judges and justices make their personal opinions known, it can give the appearance of bias.

For most judges in the United States, there are codes of conduct that regulate their behavior to avoid situations where judges impartially can be called into question, yet the justices of the Supreme Court are exempt from these conduct proscriptions. Although Supreme Court justices are not required to recuse themselves from cases, they do so from time-to-time.  Most frequently justices recuse in situations when they were involved with a case before it came to the Supreme Court, they have financial stake in one or more of the parties, or have a family tie that could give the appearance of impropriety or bias.  That said, justices such as Justice Scalia have shown willingness to engage in cases where they have a potential interest and a perceived conflict.

This post evaluates the nearly 90 times since October Term 2005, that justices of the Supreme Court have recused themselves from cases at the merits stage.  There are hundreds if not thousands more instances where justices have recused themselves at the certiorari stage, however those are not discussed here.  In addition, the post will also evaluate the handful of times where justices have been called on to recuse, and the surrounding circumstances.  The figure below examines the total number of recusals by Justice between the 2005 and 2015 Supreme Court terms.

recusals

Since 2005, Justice Kagan recused herself more than any of the other justices.  In forty cases that were decided on the merits, equivalent to nearly half a terms worth of cases, Justice Kagan recused herself because she had worked on the cases while serving as the Solicitor General for President Obama’s Justice Department.  Most of the recusals came in 2010, Kagan’s first year on the Court, but some have continued to the present.  Kagan’s most recent recusal came in 2015 when the Supreme Court looked at the constitutionality of an affirmative action program in the case of Fisher v. University of Texas.

Justice Sotomayor, who sat as a judge on both a federal district and appeals court for a total of seventeen years prior to her ascent to the Supreme Court recused from thirteen cases at the merits stage since she became a Justice in 2009.  Justice Alito, who sat on the 3rd Circuit prior to his nomination has recused himself in 9 cases, mostly for financial reasons.  His relatively extensive ownership of stock has led him to also recuse from many other cases at the cert stage.

Justice Breyer and Chief Justice Roberts have recused themselves ten times apiece.  Justice Breyer’s recusals have been for financial and familial reasons.  His brother, Charles Breyer is a US District Court Judge in Northern California, and has occasionally ruled on matters that found their way to the Supreme Court.  The Chief Justice’s stock ownership has led to his recusal in all but one of the cases he recused from, where an attorney for one of the parties was a former colleague at the firm of Hogan & Hartson (now Hogan Lovells).  Most recently, The Chief Justice recused himself in a case, after granting cert and hearing oral arguments, because a stock conflict became apparent.   The next figure shows the scenarios in which the justices have recused themselves over the previous ten terms.

recusalstack

Justices Ginsburg and Scalia, (prior to his passing) were the only Justices since 2005 that had not recused from any case at the merits stage.  In 2006, Scalia was called on by a group of retired U.S. generals and admirals to recuse himself in the case Hamdan v. Rumsfeld, after he made public remarks concerning issues of the case.

In 2015, Justices Ginsburg and Kagan were called on by conservative groups to recuse themselves in same-sex marriage cases.  The groups cited comments that the justices had made about marriage equality, and due to the fact that both justices had presided over same-sex weddings.  In 2009 and 2013, when the biotech agriculture company Monsanto had matters before the Court, Justice Thomas faced calls to recuse because he was an attorney for Monsanto in the late 1970s.  He ultimately declined to do so.

Since the October 2002 term, the Court has received 44 formal requests for recusal.  In 81% of these cases, the petitioners were pro se, and in 5 instances a justice recused him or herself at the cert stage.  As is common with pro se petitions, certiorari was denied in each of these cases.

From 2005 to the present, no Justices have recused themselves in cases where a formal recusal request was received, and where the case was subsequently decided on the merits.  These cases were Bourke v. Behsear, DeBoer v. Snyder, Tanco v. Haslam, Obergefell v. Hodges which concerned the legality of same-sex marriage, and Hamdan v. Rumsfeld which held that military commissions to try Guantanamo Bay detainees did not provide the detainees with due process.

No formal requests for recusal were filed in the 88 cases where a Justice has recused him or herself since the beginning of the 2005 term.

 


Edited by: @AdamSFeldman

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