Recusal and Other Reforms

Recusal

Under the American Bar Association Model Code, judges are instructed to step aside not just when they are actually biased, but whenever “the judge’s impartiality might reasonably be questioned.” Some form of this rule exists in nearly every state.

The urgency of new recusal rules has grown in recent years, as state Supreme Court justices receive unprecedented levels of campaign finance assistance from parties who appear before them in court. According to polls, 3 Americans in 4 believe such assistance might affect a judge’s courtroom decisions.

In the 20th century, the U.S. Supreme Court and Congress substantially broadened the circumstances in which a judge must recuse himself.

In the 1955 case In re Murchison, the Court ruled that a judge could be constitutionally required to step aside, if there were merely a “probability of unfairness.” The Supreme Court added that “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ”

Other Supreme Court decisions, cited in briefs submitted in Caperton v. Massey, have identified new situations where the probability of bias forces judges to step aside, even when they might in fact be neutral.

In Caperton, the Court handed down a landmark ruling on a case involving financial assistance during an election campaign.

In a 5 to 4 decision, the Court ruled on June 8, 2009 that it was unconstitutional for a state supreme court justice to hear a case involving the financial interests of a major backer of the judge's election campaign.

Potential Recusal Reforms
Why Recusal Does Not Always Work
Other Reforms to Protect the Courts