Recusal Reform: Treating a Justice's Disqualification as a Legal Issue

This article addresses the pressing issue of recusal in the U.S. Supreme Court. It critiques the current practice of Supreme Court Justices deciding individually whether to recuse themselves from cases, highlighting the flaws and potential biases inherent in this practice. The authors advocate for a reform where initial recusal decisions are made by individual Justices but then are subject to review by the Supreme Court as a whole. The article offers several arguments to support this proposal. First, the authors explore the evolution of recusal laws, focusing on the significant amendments to 28 U.S.C. § 455 in 1948 and 1974. These amendments aimed to establish an objective standard for recusal, requiring judges to step aside when their impartiality might reasonably be questioned. Despite these changes, however, the authors point out that the current practice still problematically allows Justices to make unreviewable recusal decisions. Next, the authors conduct a comparison of the U.S. recusal process with those in other common law jurisdictions, revealing that many other nations have adopted collective decision-making for recusal issues at their highest courts. Finally, the authors delve into constitutional concerns, discussing whether the current self-recusal procedure violates due process by failing to guarantee an impartial tribunal. The article also addresses potential separation of powers issues, arguing that Congress has the authority to regulate judicial ethics, including recusal procedures, without infringing on judicial independence. The article concludes that reforming the recusal process is crucial for maintaining public trust in the judiciary. By treating recusal as a legal issue to be decided by the full Court, rather than as a personal ethical decision by individual Justices, the Supreme Court can uphold its duty to provide impartial justice and reinforce its legitimacy.