The Fox Guarding the Henhouse?: Recusal and the Procedural Void in the Court of Last Resort

Abstract:     
This article points out the uniquely flawed nature of the Supreme Court's handling of recusal matters. The ripples generated by the Supreme Court's defective method disrupt the substantive standards of recusal for all courts in its wake. Further, the lack of adequate procedural safeguards injures public perceptions of the Court's impartiality. Ultimately, the article sets forth concrete proposals for meaningful reform of the Supreme Court's recusal process.

Recent events have stirred controversy about the Supreme Court's recusal procedure, which permits the recusal decision to be left solely up to the individual justice. This one-element "procedure" catapults the implicated justice into a treacherous position, namely to be the sole judge in his or her own case. There is no review. No opinion required. The article provides three ready examples to demonstrate procedural defects and their consequences: (i) Justice Scalia's participation in a duck-hunting trip attended by Vice President Cheney during the pendency of the Cheney case, (ii) extrajudicial comments regarding the constitutionality of the Pledge of Allegiance in the Newdow case, and (iii) familial and partisan connections in Bush v. Gore.

The article analyzes the defects with an explication of the relevant laws and principles related to recusal of federal judges and justices. Nowhere but the Supreme Court are the stakes as high or the procedures so lax. Solutions are necessary to secure the integrity of the Supreme Court, ensure respect for the Rule of Law, and strengthen substantive recusal mandates. Accordingly, the article recommends the adoption of a review process as well as a substitute justice mechanism.

Number of Pages in PDF File: 76

Keywords: recusal, procedure, Supreme Court, judiciary, independence, impartiality, impropriety, ethics, disqualification

JEL Classification: K10, K19, K30, K39, K4, K40, K41, K42, K49

Accepted Paper Series