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Justice Kennedy and the Court’s Double Standard on Recusals

In 2009 Justice Kennedy penned the majority opinion in Caperton v. Massey Coal, a 5-4 decision that held a $3 million campaign contribution from Massey’s CEO to a state supreme court judge in West Virginia required that judge’s recusal on a Massey case.

“Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal,” Kennedy wrote in his opinion, “but this is an exceptional case.” Kennedy was joined by now-retired Justices Stevens and Souter, as well as Justices Ginsburg and Breyer. Justices Scalia, Thomas and Alito, plus Chief Justice Roberts, dissented.

The irony of Kennedy’s words later in the opinion cannot be understated: “The sole trier of fact [i.e., the sole person deciding whether to recuse],” Kennedy lamented, “[was] the one accused of bias.”

But that’s exactly what happens at the Supreme Court.

The decision whether to recuse in a case is solely up to the individual justice who has a perceived bias. There is no judicial inspector general, no Judicial Conference committee on recusals, no ethics expert on retainer. While the justices sometimes consult their colleagues regarding potential conflicts of interest, the final decision on whether to sit for a case rests with each individual justice.

If Justice Kennedy doesn’t believe that that type of introspective process passed muster for a state supreme court judge, why then does it work for him and his eight (equally human) colleagues?

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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