Supreme Court Recusal
“A key goal of recusal is to assure the public, even though it has no direct role in a particular case, that court proceedings are fair and impartial.”
–Justice at Stake Campaign, Nov. 28, 2011
A vigorous debate over recusal of Supreme Court justices has erupted, with widespread calls for Justices Clarence Thomas and Elena Kagan to recuse from the highly contentious case involving federal health care law.
Judicial recusal, when properly implemented, promotes public trust and impartial justice by reducing the chance that judges will participate in cases where there is a reasonable fear of bias. But recusal must also permit judges to carry out the job they are qualified and sworn to do.
Each Supreme Court justice has the final word on whether to hear a case or step aside. Justice at Stake said in a statement Nov. 28, 2011, that when a case rises to such a high level of public consciousness that it is likely to affect public confidence in the courts, the public may benefit from hearing a justice’s reasons for recusing or not. Justice at Stake made the following recommendation:
“In the lawsuit challenging the Patient Protection and Affordable Care Act, Justices Kagan and Thomas are not required to explain their decision to stay on the case. But given the heightened scrutiny the case has received, public explanations of their reasoning would increase understanding of the court and promote public trust and confidence. We strongly urge them to consider putting their reasoning into the public record.”
“Many legal ethics experts do not believe that recusal is warranted for either Justice Kagan or Thomas. But given the importance of the health care case to the lives of many Americans, and the rare public education opportunities that such high-profile cases offer, we believe written explanations by Justices Kagan and Thomas offer the best available avenue for assuring the public that the Supreme Court will be fair and impartial—adhering to the law, the Constitution and relevant Supreme Court precedent.”