Deciding Whether to Decide

Should there be standards for recusals?

By Jeff Bleich and Kelly Klaus

The current Supreme Court term may turn out to be notable for the justices' decisions about what they won't decide. With the term only beginning, already Justice O'Connor has recused herself from considering certiorari petitions in several cases because she owns stock in one of the parties; Chief Justice Rehnquist decided to go ahead and vote on a certiorari petition in a case in which his son works for one of the parties (a petition the court denied); and one of the petitions the court did grant included an elaborate discussion of why several members of the court did not have to recuse themselves - even though their pay was at stake - so that they could achieve a quorum. Whichever decision the justices make on this issue - to recuse or not to recuse - can have dramatic consequences.

In some high-profile cases, recusals have prevented the entire court from deciding important matters at all. In other cases, the decision not to recuse has prompted complaints about the impartiality of the Supreme Court. This year, how and why the justices decide to recuse themselves may be as intriguing as any other legal standard that they will announce.

IT'S MONEY THAT MATTERS
Although the public rarely hears about recusals, at some point every justice faces the issue. The standard that the justices traditionally apply (like so many other fundamental rules) can be traced to Chief Justice John Marshall. Marshall set the bar for all future judges in his most famous opinion, Marbury v. Madison, when he decided to hear the case - notwithstanding the fact that he and his brother were major figures in the underlying dispute. Marbury involved a complaint by William Marbury, a would-be justice of the peace, who claimed he was entitled to an order from the court that President Jefferson deliver his judicial commission. The commission had actually been signed by none other than then-Secretary of State John Marshall - who ascended to the bench as one of John Adams' 'Midnight Judges.' Marbury's problem arose because Marshall, after signing the commission, mistakenly entrusted the task of delivering the papers to his less competent brother, James Marshall, who botched the job. Undeterred by the fact that the core of the case was all about this dark episode in the Marshall family annals, Marshall not only participated in the argument, but authored the court's opinion.

Throughout his legendary term as chief justice, the only limit that Marshall recognized to his ability to decide cases involving his family members had to do with money. In one of the court's later landmark cases, Martin v. Hunter's Lessee, Marshall did recuse himself - not simply because he and James once again were involved, but because the Marshall boys stood to gain the rights to valuable property depending upon the court's decision. Marshall's standard - that fiscal but not family loyalty is the touchstone of automatic disqualification - continues to this day.

Indeed, Marshall's 'it's money that matters'-rule is now embodied in a statute, which commands that a justice may not hear a case in which that justice previously 'participated' or in which he (or a parent, spouse or child) is known to 'have an interest that would be substantially affected by the outcome of the proceeding.' In practice, each individual justice makes the call on what sort of 'participation' or 'interest' qualifies. And judging by the cases where this has come up publicly, the governing principle remains that it all comes down to money.

On the personal relationship front, it is pretty clear that justices will not recuse themselves simply because of indirect connections to the case, such as they know one party or the party's counsel, or happen to like Party A or Lawyer A more than they like Party B or Lawyer B. People complain that these entanglements must affect a justice's partiality because they expect judges, like all people, will want to be more helpful to those they know and like than to strangers. In general, however, the justices reject the idea and think it would be unworkable to recuse themselves over such concerns. Justice Black, for example, refused to be disqualified from hearing several major cases that were argued by his former law partners. This term, Chief Justice Rehnquist decided that he would not recuse himself from hearing a tiny little matter known as United States v. Microsoft, even though his son James represents Microsoft in related litigation. The justices' logic in these cases appears to be that they have taken an oath not to let personal affection influence their decisions, and part of the public trust is that they will set aside friendships and disappoint loved ones if that is what they think the law requires.

Likewise, justices are for the most part unperturbed about challenges based on their earlier judicial or political activities, or statements they made before being appointed. Past participation in the same case, for example, has never been automatically disqualifying. Justice Black co-authored the Fair Labor Standards Act as a senator, swore to its constitutionality and then voted in favor of its constitutionality on the court. Justice Frankfurter did the same thing with the Norris-LaGuardia Act. Justice Jackson worked on a case that raised the same issues he formerly decided as attorney general. Justice Murphy heard an appeal of a case he had actually argued as attorney general.

This attitude extends to out-of-court activities as well. A few years ago, Justice Scalia refused to bow to pressure that he recuse himself from a case about the constitutionality of a 'right to die' after giving a speech earlier in the year in which he said it is 'absolutely plain there is no [constitutional] right to die.' As Rehnquist once explained, any qualified judge has to have formed views about issues before joining the bench, and to exclude justices with no such views from deciding cases would leave the courts only to those 'who have proved their lack of qualification' (or have kept their views secret).

The only consistent exception to the court's generally laissez-faire attitude toward disqualification continues to be John Marshall's sore point: money. Each year the greatest number of recusals are logged by Justice O'Connor, who it appears has investments in several U.S. corporations (most notably, AT&T) that sometimes seek court review. The frequency with which she has recused herself in cases involving these parties has caused court-watchers to give such cases the acronym 'OOPS' (O'Connor Owns Party Stock).

Even the hard and fast money rule, however, is not inviolable. In order to address cases in which all judges arguably have an undifferentiated financial interest (such as issues about class actions for all residents of a particular jurisdiction), the court has created a 'rule of necessity' that judges who are financially interested parties may still hear a case if there is no other practical way of deciding the matter. United States v. Will (1980). In fact, the 'rule of necessity' figured prominently in one of the first certiorari petitions the court granted this term, United States v. Hatter, a challenge to Congress' decision to subject the justices and other federal judges to the Social Security payroll tax. Four years ago, when the case was before the court in a different iteration, four justices recused themselves (because they might stand to gain financially from the result). And thus, the court lacked the required quorum of six and so could not hear the case. In his brief asking the court to grant certiorari, the solicitor general devoted nearly half of his legal argument to why the justices should not recuse themselves. Ultimately only Justices Stevens and O'Connor, the two justices whose current judicial commissions predate the change in the law, recused themselves; the court will hear the case later this year.

THE APPEARANCE OF IMPROPRIETY
Any problem that the relatively lax rules of judicial recusal creates is probably less one of substance (i.e., justices actually favoring parties based on irrational or self-interested views), than one of appearance. Appearances, however, can be problems for institutions like the courts. Recognizing this, Congress in 1974 amended the recusal rules to require judges to disqualify themselves in situations that create intolerable appearances of impropriety. Applying this standard, the court has noted that while judges are almost never biased, 'people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges,' and the 'very purpose of [the amended recusal rule] is to promote confidence in the judiciary by avoiding even the appearance of impropriety.'

Although we all like to think that the justices are paragons of reason with no irrational or self-interested prejudices on any subject, apparently no one likes to think this more than the justices; indeed, based on their decisions, justices rarely if ever perceive that others might sense impropriety in their deciding a case. It is of course hard to say when a situation is such that a justice must step aside, because - even if that justice has no direct stake in the case - 'his impartiality might reasonably be questioned.' It is harder still to say this sort of thing about yourself. Congress nonetheless left this delicate task - supposing how an objective person would view a justice's situation - to the individual justices themselves. Thus, each challenged justice must decide whether he or she thinks an objective person could reasonably challenge their impartiality. And in most cases, when the justices are asked to judge themselves, they answer no. For example, after explaining that neither he nor his son had anything to gain financially from the government's Microsoft case, Rehnquist found no other basis for a reasonable person to think recusal was warranted. Rehnquist explained that anyone apprised of the actual facts - namely, that his son's representation of Microsoft in another antitrust matter was billed at an hourly rate and any effect on his son's compensation was speculative and indirect - would not fear he was biased. Rehnquist did not address whether an outside observer might - incorrectly but still reasonably - think that as a father he might be influenced by how his son would react to a decision that broke up the son's major client.

Reasonable minds can differ about how various justices have applied the test in various instances. The problem is that whether a justice is right or wrong, ultimately he is by definition right. Once a justice decides that he or she is fit to hear a case, there is no process for challenging that conclusion and it becomes the law - thus calling to mind Justice Jackson's famous aphorism that a decision from the court is final not because it is somehow infallible, but rather is infallible because it is final.

DOUBLE STANDARDS?
Some critics may be troubled by the law of recusal for no other reason than that it suggests judges believe that the public trusts them to maintain their oath and duty in situations where it would not trust mere lawyers. Judges have frequently disqualified lawyers to avoid any appearance of impropriety, no matter how remote, in cases with far less in the way of family entanglements. Entire firms have been barred from handling cases if one of their partners previously worked on a case on the other side - no matter whether an ethical wall has been established. It is not hard to imagine a court ordering disqualification if a lawyer handled a matter in which his child was counsel for the opposing party on an hourly basis, or if the lawyer who originally prosecuted the defendant was later appointed to be his public defender on appeal. The judges' decisions reflect a certain confidence about their own independence and fairness that they do not ascribe to the rest of the profession. This may suggest that courts have gone too far in underestimating lawyers, overestimating judges or at the very least in establishing a double standard.

Another troubling thing about current recusal jurisprudence is the emphasis the court places on financial ties to the apparent exclusion of all other entanglements. While having a financial stake in a case may create a real conflict of interest, money is by no means the only or most powerful influence on people's judgment. As Winston Churchill noted, people are far more likely to be corrupted by friendship than by anything else. Frankly, most reasonable people might be relatively unconcerned that Justice O'Connor would be influenced in her vote on a case by how the court's decision might affect the value of a few shares of stock that she owns, and far more concerned if she were voting to grant or deny a petition that would bankrupt a close friend. However, under the current standards, disqualification in the former is automatic and in the latter it is virtually unheard of.

DOES THE COURT DESERVE GREATER LATITUDE?
There may be good reasons why the court treats itself to different standards than the rest of the legal rabble. One of the biggest differences between judges and lawyers is that lawyers, at least in theory, choose the cases they handle. (Some associates in big firms may dispute this). Since lawyers arguably have a choice, the reasoning goes, they should be discouraged from seeking out cases in which they have an apparent conflict of interest. By contrast, federal policy assigns judges to cases and encourages them not to duck their duties. Were recusal easy, judges might easily avoid hard or unpopular cases, and potentially deprive unpopular litigants of any forum.

The justices have emphasized that the special need to keep judges engaged in all cases is even stronger in the case of a Supreme Court justice. First, there is no way to substitute a justice who has been recused in the way that judges may be substituted on the lower courts. Second, in a case where one justice is recused, an even number remains, which creates a risk of deadlock by an equally divided court. Just last term, for example, Justice O'Connor was recused in a case concerning the scope of federal removal jurisdiction, because she owned stock in one of the parties. The court wound up deadlocking, 4-4, and as a result an important issue of federal procedural law was not decided and remains the subject of a split between the federal circuits today. This problem is compounded by the fact that there is no higher court of appeal that may review an equally divided decision of the court and thereby settle a legal rule. Based on these concerns, Chief Justice Rehnquist has advised that he is reluctant to step aside from cases, and that a justice should 'not 'bend[] over backwards' in order to deem oneself disqualified.'

MUCH ADO ABOUT NOTHING?
Perhaps all this concern about the standards for recusal among Supreme Court justices may be unfounded. There does not seem to be any emerging public outcry about recusals. In fact, it is hard to think of a case in constitutional jurisprudence in which those who lost complained that although four of the justices were within their rights to vote as they did, the fifth was biased, unfit and his or her vote shouldn't have counted. Indeed, if a justice were to act in a blatantly self-interested and biased manner, there is always the remedy of impeachment to address the issue.

On the other hand, there may still be some corrosive effect on public trust if there is a widespread belief that the court is applying too loose a standard for judicial disqualification. Perhaps the reason that we are unconcerned about Supreme Court justices deciding cases that could enrich their friends, or that are argued by former business partners, or that might affect their children's careers, is that we have become used to these standards.

If the reason for applying relaxed standards for the court is truly due to the institution's unique place in the nation's judicial system - i.e., that its members can't be replaced and it is uniquely entrusted with creating closure - maybe the solution is to apply special standards for the court. This would prevent the court's decisions from unduly relaxing recusal rules for all other courts. Justices might be allowed, for example, to apply a less demanding recusal standard than other judges apply to themselves; thus the 'appearance of impropriety' standard might apply only to lower courts, and the standard might be invested with more substance than it currently appears to have. Alternatively, the standards could remain the same for all courts, but changes could be made to the Supreme Court's practice. For example, a mechanism could be established for having retired justices serve as replacement justices in cases where a recusal was required. Or the court could refer recusal matters to a special panel, rather than having individual justices make these determinations for themselves. Of course, any tinkering with the court's composition in recusal situations would have to be designed to prevent parties from manipulating the system to get (or, more likely, to eliminate) a particular member of the court.

Whatever change may be appropriate in defining recusal standards for the court, the issue is not merely one of theory. As the court notes, requiring recusals to occur too frequently undermines the administration of the court and deprives litigants of the views of knowledgeable and impartial justices. However, the current idiosyncratic system of letting each justice set his or her own standards may be damaging to the court's stature over the long run. Whatever the solution, it may be time for others to help the justices decide whether they decide. +


ABOUT THE AUTHORS

Bleich and Klaus are litigation partners at Munger, Tolles & Olson in San Francisco. Bleich clerked for Chief Justice Rehnquist in 1990 and teaches constitutional law at Boalt Hall. Klaus clerked for Justice Kennedy in 1995 and teaches a course on advocacy and judicial decision-making at Stanford Law School.


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