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Chief Justice Roberts’ Recusal Secrecy Spans Years

When Chief Justice John Roberts was a nominee to the Supreme Court in 2005, reporters asked the U.S. Court of Appeals for the D.C. Circuit, where he was a judge at the time, for list of all the times Roberts had recused himself from cases during his tenure. The court refused to release that list, and Roberts himself did not volunteer it as part of the confirmation process.

Two years later, with Roberts as chief, the Supreme Court decided to hear what was called “the most important securities case to come before the court in decades,” and Roberts initially recused himself. But weeks before arguments, Roberts did an about face and announced he’d be siting on the case – though Justice Breyer, who had recused himself with Roberts back went the case was accepted, sold no stock and remained on the sidelines. This inconsistency confounded court watchers.

“The silence [around recusals] is unnecessary and could be counterproductive,” the Washington Post editorial board wrote at the time. “The court rightly demands absolute secrecy in its deliberations [and] correctly guards opinions until their official release. […But d]eclining to provide immediate and simple answers to recusal decisions doesn’t serve the same lofty public policy goals.

We couldn’t agree more.

It turns out that Roberts did sell stock, which allowed him to rule in the case. The sale was noted in his 2007 financial disclosure report, which was not released until June 2008, meaning the public was kept in the dark for nearly a year.

The Supreme Court does not require justices to explain the reasons for their recusals, and it’s clear why this opaque practice must end. While we do not assume Chief Justice Robert and his colleagues to be acting improperly on a regular basis, there is no reason for them to hide behind this antiquated practice that leave the media and members of the public guessing if and when a justice has a potential conflict of interest.

Fix the Court is calling on the chief justice to establish a formal recusal reporting procedure in which justices would submit the reason for their recusal to the court’s Public Information Office, which would then post the reason on the court’s website. And we’re calling on the court to make it easier for attorneys and members of the public to file a request for recusal in any case.

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