City Bar Recommends Supreme Court Justices Issue Written Explanations on Recusal Decisions

As the United States Supreme Court begins its new term Monday, the New York City Bar Association has recommended that its Justices be required to issue written explanations for their decisions either to recuse from a case or to hear a case in the face of a motion to disqualify. “The adoption of this practice, whether by the Court’s initiative (the preferred method) or by congressional action, would help increase public confidence in the Court and provide Justices with a valuable structure for guiding the public disclosure of their recusal decisions,” states a report from the City Bar’s Government Ethics Committee. Surveys indicate that public confidence in the Court and its independence has declined substantially.  The health care case and other recent events have intensified the longstanding debate about when a Justice should recuse and what, if anything, should be said publicly about the reasons for a recusal decision.  A bill addressing these concerns, the Transparency & Disclosure Act, was introduced in Congress last year. The City Bar supports the portion of the Transparency & Disclosure Act that would require Justices to disclose publicly their reasoning behind either recusing from a case or refusing to withdraw after a motion to disqualify is made.  Imposing such a requirement would strike the right balance between the Constitutional imperatives of separation of powers and judicial independence, on the one hand, and transparency and public confidence on the other. Where, the report asks, “is the line between a politically inspired demand for recusal that, from an ethical standpoint, perhaps is fairly disregarded, and a demand for recusal with enough ethical substance that it might fairly affect public confidence in the Court and, at least, calls for a reasoned public response?” Written explanations would open the Court’s “black box” in this limited respect and “help the parties and the public to have confidence that the judicial oath to hear cases ‘faithfully and impartially’ is honored in practice by the highest court in the land,” states the report. The report cites instances in which several current Justices have been subjected to calls for recusal due to various personal relationships or outside activities.  The report does not take issue with any particular recusal decision.  Rather, the report states, the Association is concerned that Justices rarely “provide the public with a memorandum addressing the reasoning behind” a decision to recuse or not.  Requiring a writing in all cases, according to the report, “merely eliminates the need for the public to try and ‘connect the dots.’” The report notes that the Justices assert that they already consult the codes of judicial conduct constructed by the ABA and the Judicial Conference with respect to recusal; both of those codes require that a disqualified judge state on the record the basis of the disqualification.  The Transparency & Disclosure Act’s requirement of a writing would go beyond the codes to require a Justice to state the reasoning both for a decision to recuse and for the refusal to recuse when a motion is made for them to do so.  This requirement would  address the issues of “public perception and confidence, which have particular value in the case of this precious institution and would be bolstered by more frequent public statements of the rationale behind recusal decisions,” according to the report. And, “in the rare instances where a Justice is inclined to participate in a case where ethical constraints argue against doing so, the requirement of a writing would create valuable counterpressure.” Read the report here: