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Birds of a Feather: Justice Scalia and Avoiding Recusals

Justice Scalia has a long history of refusing to recuse himself in cases in which he has had a perceived conflict. In 2006 he made remarks about Guantanamo Bay prisoners a few weeks before he heard a case about the detention center, causing five retired admirals and generals to send him a letter urging him to step aside. (He didn’t.)

In 2004 he went duck hunting with Dick Cheney just three weeks after court agreed to hear case in which the vice president was a litigant. In 2001 he went pheasant hunting with governor of Kansas and the state of Kansas’ lawyer while the court was considering major cases involving the state.

If any of BP’s appeals arising from its infamous 2010 oil spill reach the high court, will Justice Scalia recuse, given that one of his sons is a partner at the firm representing BP?

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 Justice Scalia or 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 Chief Justice Roberts 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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