Presidential Commission on the Supreme Court of the United States
individual Justices. The complaint could be referred to the entire Court or a subset of Justices. How such a procedure might affect the overall role of the Chief Justice and the working relationships of the Justices is not clear, although the development of deep personal rifts seems at least possible as a result. And again, the sanction of removal from a case could have broad repercussions for the Court, litigants, and the public.
Some might conclude that the adoption of a code of conduct would not be beneficial without an additional mechanism for receiving and reviewing complaints. However, experience in other contexts suggests that the adoption of an advisory code would be a positive step on its own, even absent binding sanctions.[146]
C. Recusal
All federal judges, including the Justices, are subject to statutory standards that require recusal in specified situations. The statute, 28 U.S.C. § 455, requires a judge or Justice to recuse “in any proceeding in which his impartiality might reasonably be questioned.”[147] The statute also requires recusal in more specific circumstances, such as when the judge has a financial interest in the proceedings or personal knowledge of disputed facts.[148] Recusal decisions by lower court judges are orders in a case and, like other rulings, are subject to review on appeal. By contrast, a recusal decision by a Justice is not subject to further review. Perhaps in part for this reason, the Justices rarely offer any explanation either for refusing to recuse or for recusing. Justices Rehnquist and Scalia famously wrote memoranda explaining their decisions not to recuse in two high-profile cases.[149] But those memoranda were quite unusual.
Moreover, when a lower court judge recuses, another judge is selected to hear the case. While it can be disruptive to a case when a judge recuses after participating in the proceedings for a substantial period of time, most recusals come at the first assignment of a case and do not affect the handling of the case. In contrast, when a Justice recuses there is no current possibility of adding another Justice. For this reason, the mere fact of the recusal may be case dispositive. The Justices may therefore be justified in being more hesitant than lower court judges to recuse, and correspondingly should be more careful to avoid circumstances that might trigger recusal.
The Justices’ recusal decisions are subject to significant public attention, and Justices are often criticized for failing to recuse.[150] Even so, the Justices recuse somewhat frequently, at least at the certiorari stage. There was an average of 193 recusals at the certiorari stage over the last six Terms, and an average of four recusals at the merits stage.[151]
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