The federal judiciary can learn from transparency measures in state courts

Before Supreme Court justices can decide if they want to hear a case, they must decide if they are allowed to consider it. All judges and justices are bound by ethics and federal law to disqualify themselves in cases in which they have, or appear to have, a conflict of interest. 

Unfortunately, the process used by federal judges and justices for deciding if they should recuse themselves, and even their ultimate decisions, are difficult to determine. These decisions have far-reaching implications, both for individual cases and the jurisprudence shaped by the Supreme Court’s docket. 

In a report released last week, Fix the Court examined each of the justices’ recusals last year. After looking at financial records, family relationships and previous work, we were still unable to figure out five of the 198 cert.-stage recusals. We also found two cases in which justices disqualified themselves but their recusals were not listed on the court’s orders list. That makes it even more difficult to understand the workings of the nation’s highest court. 

But beyond the fact recusals are difficult to find and understand, the bottom line is that we should not have to guess. Like other branches of government, the judiciary should explain how, why, and when justices make these important decisions. 

The problem does not end with the Supreme Court; circuit and district court recusals are also hard to determine. When those judges are recused, the decision is not noted in the electronic case file. Instead, conflicted judges are simply skipped over in the assignment process, and no recusal notice is listed in the docket.

Though the federal judiciary fails to offer transparency on judicial disqualifications, we can learn some lessons from state courts. 

Alaska, for example, requires judges to disclose on the record their reason for disqualification. Like federal judges, Alaska’s judicial officers are required to disqualify themselves in a number of instances, such as personal on family involvement in the case, professional history and financial interest. If they determine that recusal is necessary, Alaskan judges then provide the reason for the conflict (AS 22.20.020 (a)).

One advantage of this system is that the transparency allows the parties in the case to waive the judges conflict in some cases. If a judge identifies a potential conflict of interest that both parties think is unimportant, they can allow the judge to hear the case. This has the potential to save the judiciary valuable time and resources without compromising judicial integrity. 

Alaska has another unique rule, allowing parties in a case to be automatically assigned a new judge if they have doubts about a judge’s impartiality. The “peremptory disqualification” statute (22.20.002) requires that the case be assigned a new judge if a party files an affidavit questioning a judge’s ability to conduct a “fair and impartial trial.” There is no proof necessary, and the removal is assured, though it should be noted that parties have only five days after the case is assigned file the affidavit, and that they can only do it once on any given case. 

Wisconsin also requires judges to reveal their reasons for disqualification. The Wisconsin statute is similar to Alaska’s in that it specifies grounds for recusal, the requirement that judges identify the reasons for recusal and the mechanism for parties to determine that a judge need not recuse.

Wisconsin’s statute even specifies what happens after a judge recuses from a case. “When a judge is disqualified, the judge shall file in writing the reasons and the assignment of another judge shall be requested under S.751.03” (757.19 (5)). Judges file an explanation, and then the process for selecting a new judge takes place. Whereas in federal courts, some recusals take place behind the scenes, Wisconsin requires full transparency on the recusal and reassignment of the case.

Alaska and Wisconsin both provide more transparency on judicial disqualification; and in doing so, they bolster the integrity of judicial officers without compromising their privacy. The federal judiciary should take a look at these options and find a way to provide the public some much-needed clarity on the inner workings of the courts.