The judicial black box of Supreme Court recusal

The U.S. Supreme Court displayed a bit of hypocrisy last week, when a 6-3 majority blocked a key provision of New York State’s eviction moratorium law by invoking a principle that they have steadfastly refused to apply to themselves.

The Court’s unsigned opinion in Chrysafis v. Marks, issued as an emergency measure on what has come to be known at its “shadow docket,” held that the New York law violated landlords’ due process rights by allowing a renter to conclusively forestall eviction by submitting an affidavit that “self-certifies financial hardship.” In a one-sentence rationale for the ruling, SCOTUS explained that the truncated procedure, which a landlord could not contest, violates its “longstanding teaching that ordinarily ‘no man can be a judge in his own case.’” That stands in sharp contrast to the Court’s approach to recusal, in which each justice personally exercises exclusive and unreviewable discretion over requests for their own disqualification.

A federal statute requires the disqualification of any U.S. judge or justice for various financial conflicts, as well as in any other situation where their “impartiality might reasonably be questioned.” According to the leading SCOTUS precedent, Liljeberg v. Health Services (1988), the test is an objective one. It does not require evidence of actual bias, but only a showing that a reasonable person, with knowledge of the relevant facts, would believe that the judge or justice has created an “appearance of partiality.” The statute does not specify any particular process, and different federal courts have used varying procedures.  

Unfortunately, SCOTUS has adopted the “historic practice” of deferring recusal decisions to the justice in question, with no review by the other members of the Court. Even in the most questionable circumstances, such as the late Justice Antonin Scalia’s mid-litigation duck-hunting trip with Vice President Dick Cheney, each justice has the prerogative of deciding whether they even appear to be biased in the case.

Scalia at least explained his non-recusal in an extensive, if unconvincing, opinion. Justice Amy Coney Barrett did not even do that in a recent case. In Americans for Prosperity Foundation vs. Bonta (2021), she joined a majority ruling in favor of a plaintiff whose “corporate sibling” had spent over $1 million on a “grass roots” campaign in support of her confirmation. Despite a letter requesting her recusal, from Sen. Sheldon Whitehouse (D-R.I.)and two other congressional Democrats, she offered no explanation, and her colleagues, including the three liberal dissenters, predictably kept mum.

Justice Barrett is not alone. Although formal motions to disqualify Supreme Court justices are seldom filed, the Court averages about 45 self-recusals per term (nearly all of them on decisions to deny petitions for review) and they are virtually never accompanied by explanations. In addition, there is no way to know how often justices have considered and decided against recusal, whether rightly or wrongly. The Supreme Court’s recusal practice is basically a judicial black box, which is not surprising given that SCOTUS is the only court in the United States without its own formal ethics rules.

The Code of Conduct for United States Judges is binding on the lower U.S. courts, but it has never been adopted by the Supreme Court, notwithstanding frequent calls to do so by members of Congress, advocacy groups and the public. Despite the glaring need, Chief Justice Roberts, in his 2011 Annual Report, rejected the idea of such a code for the Court, while emphasizing that “the Supreme Court does not sit in judgment of one of its own Members’ decision whether to recuse in the course of deciding a case” (capitalization in original). The upshot is that we don’t know how or why recusal decisions are made; we only know that the justices are the lone deciders of their own impartiality.

It is more than a little ironic that the Supreme Court dealt a harsh blow to pandemic-weary, cash-strapped New York tenants on the theory that they cannot be trusted to certify their own financial hardships, while the very same justices insist that they alone can evaluate their real or apparent biases. As Roberts declared, “the individual Justices decide for themselves whether recusal is warranted.” 

The SCOTUS majority actually gave itself some overlooked wiggle room in the Chrysafis opinion, carefully stating that “ordinarily ‘no man can be a judge in his own case.’” When it comes to disqualification, it turns out that nine extraordinarily powerful judges can do it all the time.

Sarah Lipton-Lubet is executive director of Take Back the Court. Steven Lubet is Williams Memorial Professor at the Northwestern University School of Law.