FTC Calls on SCOTUS to Resume Century-Old Practice of Recusal Explanations
Read our letter to the Supreme Court clerk here: TinyUrl.com/2017RecusalsLetter
Fix the Court today sent a letter to the clerk of the Supreme Court calling on the court to resume a pro-transparency practice halted more than 100 years ago in which the justices would publicly explain their recusals.
Between 1889 and 1904, and possibly before, the justices would list the reasoning behind their decisions to step aside from merits cases, stating, for example, “Mr. Justice White, not having been present at the argument, took no part in this decision” (1904) and “Mr. Justice Brewer, not having been a member of the court when this case was argued, took no part in the decision” (1889). This practice came to light last month when the high court uploaded its 1889-1992 Journals to SupremeCourt.gov.
“The public should have confidence that the justices are not overlooking their conflicts of interest, yet the fact that three times in the past year and a half a justice considered a case or petition despite a statutory conflict erodes that confidence,” FTC executive director Gabe Roth wrote in the letter. “If the justices were more attuned to their conflict-inducing holdings and relationships, and if they were more open about them to the public, I believe they would be less likely to miss a conflict in the course of their work.”
The justices nowadays collectively recuse themselves close to 200 times per term. For the past two years, FTC has researched these recusals – the vast majority come in the cert. stage – and has listed the reasoning behind them on FixTheCourt.com. Some are easy to discern, as annual financial disclosures indicate stock ownership, and several justices have well-known family members in the law. Others leave significant guesswork.
In the interest of transparency, FTC recommends that the court add an explanatory phrase to the orders with recusals – i.e., that a justice took no part in a case or controversy “because she heard the case previously,” “because he has a stock conflict” or “because he was not on the court when the case was argued.”
“The court derives its legitimacy not only from the public’s trust that it faithfully interprets our laws but that it faithfully follows them, as well” Roth added. “If periodic non-recusals undermine our faith in the court even a little bit, then simple fixes like recusal explanations are worthwhile for safeguarding the court’s integrity.”