It’s no secret that federal judges and Supreme Court justices periodically sit on cases despite conflicts of interests and that these errors can erode the public’s trust in the third branch. But yesterday’s Sotomayor recusal notification demonstrates that the court can evolve and that increased transparency around conflicts is not so difficult.
We think jurists should generally be more cognizant of potential conflicts. But despite the software-based conflict-check system the Judicial Conference began requiring in 2007, chambers nationwide still keep their own conflict sheets to double check. Plus, these regulations don’t include the justices.
A more comprehensive solution, then, starts by saying the conflict out loud – in other words, by offering a brief public explanation of why you’re recused. After all, Supreme Court orders used to do that about 100 years ago. A justice “took no part” in a case because he was “not present at the argument” or was “not a member of the court when the case was argued,” the orders said.
The second element to a more transparent recusal protocol is acknowledging the operative part of federal law that required your recusal. Justice Sotomayor also did that yesterday, name-checking 28 U.S.C. §455(a), which states, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
This idea – giving a brief explanation and then citing the law – made it into Section 3 of 21st Century Courts Act introduced Feb. 28. Since it’s unclear whether Sotomayor’s policy will be carried forward, it’s best in our view to ensure there’s a law on the books that will push the judiciary to provide greater of transparency about judicial conflicts.
Even if the law doesn’t pass, yesterday showed us that change – in fits and starts – can come to SCOTUS.