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NLRB to Announce Recusals in Advance. Will SCOTUS?

Missed recusals have marred the both National Labor Relations Board and the U.S. Supreme Court. But unlike SCOTUS, the NLRB has decided to do something about it.

The NLRB announced this week plans to changes its procedure to publicly disclose in advance Board members’ decisions to recuse from cases due to potential conflicts of interest.

The decision comes in the wake of widespread scrutiny around the Board’s disqualification process. After criticism of one board member’s decision not to recuse himself, despite the fact that his former law firm was involved in a case, the NLRB’s inspector general reported a serious and flagrant problem with the recusal process. The NLRB responded by conducting an internal review that found the procedures to be “strong and fully compliant” with ethics rules. The internal review did, however, make some policy recommendations, including the advanced public disclosure of recusals.

The Supreme Court has been subject to similar ethics concerns in recent years. Fix the Court has identified a dozen instances since 2012 in which justices voted despite an apparent conflict of interest. In addition, justices’ impartiality has been the subject of debate recently after a meeting between Justices Alito and Kavanaugh and the president of the National Organization for Marriage, an organization that has advocated for specific rulings on cases currently before the Supreme Court. Observers have noted that Supreme Court justices should not be lobbied and have questioned whether the justices can reasonably appear impartial after the meeting.

Unlike the NLRB, however, the Supreme Court has no inspector general to raise questions and thus has conducted no internal review of its recusal procedures. The Supreme Court should learn from other agencies and work to improve transparency. An independent inspector general for the judiciary would be one step. Clearer ethical guidelines and increased transparency on recusals would be another.

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