Presidential Commission on the Supreme Court of the United States
Recusal decisions could serve as guidance to Justices and might also clarify whether the Justices use the same standards for recusal on recurring issues, particularly a Justice’s prior contact with a case when a circuit judge. While the Justices may provide such statements on their own, Congress or the Court itself might also require such statements from the Justices.[152] However, requiring full discussion on every decision to recuse could be time consuming and burdensome. A reasoning requirement could also force Justices in some situations to divulge private matters—for example the medical condition of a family member—and this could discourage recusal where otherwise appropriate. A recusal opinion might also have the appearance or effect of lobbying the other Justices.[153] One answer to these concerns might be to require only a short statement without specific details; for example, the Justice might state that the recusal is based on the Justice’s involvement with the case when a circuit judge and identify the nature of the involvement (e.g., served on the panel, reviewed a motion to hear the case en banc).
In tandem with requiring explanations for recusal, there may be benefits to requiring Justices to state reasons for not recusing when a motion for recusal has been filed. Requiring reasoned explanations could ensure that the Justices have thoroughly considered whether to recuse. And, like explanations for recusal, explanations for not recusing could help build a body of guidance to future Justices that is also accessible to the public. Even more so than with explanations for recusal, however, requiring explanations for not recusing could become burdensome and time-consuming if motions to recuse became more common and interested groups see such motions as an opportunity to harry or embarrass Justices with whom they disagree.
2. Establish a Review Procedure
A Justice’s decision whether to recuse is totally independent, and recusal decisions are not subject to any kind of review. The Justices may well consult with one another over difficult recusal decisions, but the decision is still that of the individual Justice and not subject to further review. This places the Justice in the position of being the final arbiter of a recusal motion that challenges the Justice’s own impartiality.[154]
Other individual decisions made by the Justices are subject to a form of review by another Justice or the full Court. Parties regularly make applications to individual Justices. These applications include, for example, requests for filing deadline extensions and requests for a temporary stay of an injunction. If a Justice denies one of these requests, Supreme Court Rule
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