October 28, 2020
Supreme Court Recusal
Professor of Law, Stetson University College of Law
Recusal – the act of a specific judge or justice being removed from a specific case, typically for ethical reasons – is as old as courts themselves. It reflects a concern about self-interested judging that is at odds with the impartial, independent judiciary envisioned by our Constitution and, to that end, serves two general purposes. The first is to protect individual litigants from biased judges. Our judicial system cannot function if litigants lack a fair opportunity to present their cases to an open-minded arbiter. The second is to protect the integrity of the judiciary, which is necessary to maintain public confidence in our judicial institutions and actors.
Supreme Court recusal is important to the confirmation process for at least three reasons. First, because Supreme Court justices’ recusal decisions are unreviewable and very rarely explained, the confirmation process may be the best opportunity for public vetting of a justice’s views on recusal. It is perhaps the only chance for public inquiry into how the prospective justice envisions balancing the institutional cost of recusal, discussed below, against the benefits of protecting the integrity of the Court from real or perceived bias. Second, a prospective justice may invoke future recusal problems as a reason not to answer a question at their hearing. Third, and relatedly, because Supreme Court justices rarely, if ever, publicly answer questions about their personal views on the law or judging (let alone under oath), confirmation hearings are among the very few instances where a justice may publicly take a position that could be grounds for recusal in a future case or cases.
The justices’ autonomy over recusal is reflected in practice. Notwithstanding their wide discretion in deciding whether to recuse, recusal is not uncommon at the Court. Stock ownership is among the most common grounds for recusal but is far from the only one. Justice Breyer has recused himself from multiple petitions in cases that involved his brother, a senior district judge in California. Justice Kagan recused herself from the controversial affirmative action case Fisher v. University of Texas, almost certainly because she had worked on the case while Solicitor General. In the October 2018 Term, Justice Kavanaugh recused from several cases he participated in while a judge on the appeals court, as well as Gundy v. United States, a constitutional challenge to Congress’s authority to delegate power to administrative agencies, because he joined the Court after oral argument. This past term, Justice Sotomayor recused herself from a “faithless elector” case, Colorado Department of State v. Baca, because of her friendship with one of the parties.
Whereas the justices are regularly confronted with recusal issues, they are not required to, and hardly ever, explain their recusal decisions. Moreover, when the justices do publicly explain their views on recusal, they reveal a range of concerns that are beyond the statutory requirements set by Congress. These concerns are driven by the fact that, unlike lower court judges, a recused justice may not be substituted for, leaving the Court with at least one fewer member in that case. Recusal’s effect on the physical makeup of the Court raises the possibility of a tie vote that could prevent the Court from issuing a precedential decision on an issue of national importance, or, in instances of multiple recusals, a lack of quorum that would prevent the Court from deciding the case at all. Chief Justice Roberts confirmed the justices’ views on recusal in his 2011 Year-End Report on the Federal Judiciary when he explained that, “if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.” Similar concerns have been expressed by justices in their congressional testimony, public statements on recusal, and individual memoranda explaining specific decisions not to recuse.
Understanding recusal in this way reveals much that is relevant to the confirmation process. A nominee’s hearing is an opportunity to discover (and potentially commit them to) their views on how recusal should be employed at the Court. In particular, how the Court’s obligation to resolve important legal questions should be balanced against perceived challenges to its integrity and legitimacy. As the Court becomes more politicized, concerns about the justices’ political affiliations or connections may diminish public confidence in the Court’s ability to remain independent. The recusal statute’s requirement that justices be removed from cases in which their impartiality might reasonably be questioned may be read more broadly as the political environment in the nation—and the Courts’ perceived place in it—becomes more contentious.
Nowhere is this more evident than in the controversy surrounding Judge Amy Coney Barrett’s confirmation to the Court just days before a presidential election. Within hours of Justice Ruth Bader Ginsburg’s death on September 18, Senate majority leader Mitch McConnell, the person in charge of the confirmation process, announced that “President Trump’s nominee will receive a vote on the floor of the United States Senate.” This is directly contrary to his position in 2016, when President Obama nominated Chief Judge Merrick Garland to fill the late Justice Antonin Scalia’s seat on the Court 237 days before the election. At that time, McConnell announced that the Senate would refuse to consider any of the president’s nominees to the Court until after the election because the Senate should "give the people a voice in the filling of this vacancy."
Senator Lindsey Graham, the chair of the Judiciary Committee and the second-most powerful person in the confirmation process, followed Senator McConnell’s lead despite having promised in 2016 that: "If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say, ‘Lindsey Graham said let's let the next president, whoever it might be, make that nomination.’” What’s more, Senator Graham expressed confidence that Republicans would confirm a new justice before the election prior to knowing who the president would nominate. This abrupt shift by both Republican leaders reveals the inherent partisanship and opportunism in their decision, and draws into question the integrity of the entire confirmation process.
But simply filling the seat before the voters weigh in is only one example of the hyper-politicization of Judge Barrett’s nomination. President Trump also made clear that installing his nominee on the Court before the election is important to the outcome of the election itself. He explained he thinks the election “will end up in the Supreme Court and I think it’s very important that we have nine justices, and I think the system’s going to go very quickly.” He also directly connected Judge Barrett’s confirmation to a central issue of his campaign by tweeting that his judicial nominees, including Judge Barrett, “will do the right thing unlike Bush’s appointee John Roberts” and vote to overturn the Affordable Care Act in a case scheduled a few days after the election; just in time for Judge Barrett to join the Court.
The hypocrisy of McConnell and Graham, and the explicit connection of Judge Barrett’s nomination to President Trump’s campaign platform and the election cast a shadow on the Court’s integrity and independence. More urgently, they cast a shadow over Judge Barrett’s potential participation in cases involving the 2020 election that requires her recusal from such cases. As we learned from Bush v. Gore, the public is inherently skeptical about the Court’s involvement in a presidential election, especially one that appears to be decided along party lines. This skepticism contributes to the conclusion that a reasonable observer could question Judge Barrett’s participation in a case involving the election and further supports her recusal.
Finally, although the threat of a tie vote due to Justice Barret’s recusal is an important consideration, it should not overcome her need to recuse. Whereas a 4-4 decision would be a terrible outcome in a case effectively deciding a national election, leaving the Court with an even number of justices may also be a blessing, as it could force the eight sitting justices to seek (and find) greater consensus. The Court has been inspired to pursue unanimity in other landmark decisions; what better place to rise above partisan and ideological divides than in a case about preserving our democratic process.
In recusing herself from any election disputes, Justice Barrett would be practicing the lessons of 2000 by protecting the Court’s legitimacy and incentivizing her eight remaining colleagues to find common ground on an issue of the greatest national importance.