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We Still Can’t Figure Out Five Recusals From This Term

Help us understand why justices disqualified themselves from hearing these five cases

Image result for help usWho keeps track of judges? The surprising answer is basically no one. 

Take recusals: judges and justices are required by federal law to disqualify themselves from hearing a case if they have a conflict of interest. For example, if they have a personal relationship or financial relationship with one of the parties in the case or if they were involved in the case earlier in their career, they step aside and let another judge handle the case. 

The recusal law is important to maintaining the integrity and impartiality of the judiciary. But unfortunately, judges and justices do not have to explain their decisions on recusals, and for the Supreme Court, no one reviews the decision to see if a justice should have recused himself or herself, or should not have heard a case. 

Last month, Fix the Court examined the 198 times Supreme Court justices stepped aside in cases at the cert. stage this term to see if we could understand the Justices decisions. We found a reason in all but five: one each from Breyer and Alito and three from Kagan.

If anyone has an idea why the justices recused in these cases, contact us at

Breyer recused in 18-210, BATS Global Markets v. Providence, R.I., a class action lawsuit against several securities exchanges. It’s possible he recused because he owns stocks sold on these exchanges, but that wouldn’t be necessary under the recusal statute. If there were no other reason, this recusal could be considered an error on his part.

Alito recused in 18-1468, United Mine Workers v. Toffel, a case concerning a bankruptcy court’s decision to terminate a debtor’s obligation to pay premiums to the combined benefit fund. We think it’s likely that Alito’s significant stock and retirement holdings account for this recusal, but we could not find a specific example that triggered his decision.

Kagan recused in 18-7939, In Re: Daniel E. Salley; in 18-5020, In Re: Lewis Brown; and in 17-6271, James v. United States. Though we can’t say for sure, it’s likely that she disqualified herself because of her previous work related to her time as solicitor general given that the petitions come from federal prisoners.

What’s also interesting about the first two Kagan cases here is that federal judges were named as parties, and that could also be a clue as to why she stepped aside. For example, In Re: Lewis Brown names Judge Dan Polster of Ohio as a party of the case. It’s possible Kagan has a relationship with Polster given that she supervised his circuit from 2010 to 2018.

These five cases may not seem that significant, but the point is that we shouldn’t be guessing on any of the justices’ recusals. The decisions are important to the integrity of the justices and the jurisprudence they shape. Justices, and all federal judges, should explain their decisions to disqualify themselves. 

We know the justices have vast responsibilities, but they already go through the process of deciding if they should recuse, so all we are asking is that they show their work. By simply referring to the section of the recusal law that caused the disqualification (i.e., the section on financial interest or personal relationship), the justices and judges of the federal judiciary could help the American people understand how their federal judiciary operates.

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