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Supreme Court: The recusal question

If justices recuse themselves from a case, or refuse to do so when asked, an explanation is warranted.

January 03, 2012
  • Conservative interest groups and Republican lawmakers want Justice Elena Kagan off the healthcare case.
Conservative interest groups and Republican lawmakers want Justice Elena… (Pablo Martinez Monsivais…)

Chief Justice John G. Roberts Jr. has addressed complaints that a member of the Supreme Court has the last word when it comes to deciding whether to participate in cases in which his impartiality is questioned. Roberts' response: Things are fine as they are.

In his end-of-the-year report on the federal judiciary, Roberts insists that the justices abide by the Code of Judicial Conduct, which requires judges to be impartial, even though it doesn't formally apply to the Supreme Court. He notes that the justices also make financial disclosures required by the Ethics in Government Act, although the court has never ruled on the constitutionality of the law. And he says that "I have complete confidence in the capability of my colleagues to determine whether recusal is warranted."

That confidence, however, is not universally shared. Recusal — withdrawal from a case because of an appearance of conflict of interest — has been the subject of several controversies. Conservatives want Justice Elena Kagan to recuse herself from a case addressing the constitutionality of President Obama's healthcare law because she served as solicitor general when challenges to the program were being discussed. Liberals have called on Justice Clarence Thomas to withdraw from the same case because his wife was involved with a group that opposed the legislation.

A federal statute states that any "justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The problem is that each justice decides for himself or herself whether to recuse, usually without explanation. A rare exception was a detailed statement issued by Justice Antonin Scalia in 2004 after he refused to disqualify himself in a case involving then-Vice President Dick Cheney, whom Scalia had accompanied on a duck-hunting excursion.

Legislation introduced by Rep. Christopher S. Murphy (D-Conn.) would require a justice who recused himself in a case to provide the reason. If a justice rejected a petition that he withdraw, the reason for that decision also would have to be made public, and that decision could be appealed to a panel of retired justices and senior judges. Finally, Murphy's bill would require the justices to abide by the Code of Judicial Conduct, which they presently consult but are not bound by. Congress should not interfere with the decisions of the court, but judicial ethics are a fit subject for legislation, which would be unnecessary if the court acted on its own.

The decision to participate in — or withdraw from — a controversial case is a weighty one, especially on the Supreme Court, where one recusal creates the possibility of a 4-4 tie. But when a justice complies with, or rejects, a serious request to withdraw from a case, the public deserves an explanation.

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