6

Is there any mechanism to force a judge to recuse him/herself from a case? (I mean above and beyond filing a motion and leaving the decision to the judge him/herself to decide?)

For example, Justice Ginsberg recently commented on the U.S. presidential election by taking a favorable position for one leading candidate and against another. If a case were to come before the Supreme Court (à la Bush v. Gore) with the potential to determine the outcome of the election, is there a mechanism by which Chief Justice Roberts (or any subset of the justice panel or any other body, like congress) could force Justice Ginsburg to recuse herself from the case? Or could she unilaterally make the decision to stay on as a potential swing vote?

Even if there is no legal mechanism for an ex parte recusal, I'm curious what the legal ethics of this situation are also.

  • You could file for a writ of mandamus from a higher court. But obviously that won't work in the case of Notorious RBG -- there is no higher court. – David Schwartz Jul 15 '16 at 9:17
5

The relevant statute, 28 USC 455 simply states what shall be, and does not suggest that the law could be enforced by any particular means. There have been cases where there was a suggestion of a hint of impropriety at SCOTUS and yet things proceeded. In Laird v. Tatum, 408 U.S. 1 Rehnquist did not recuse himself despite being a White House lawyer and having expressed an opinion on the legality of certain arrests, and that was the end of that matter.

5

To elaborate on @user6726's answer, 28 U.S.C. § 445 states when Federal Judges shall recuse themselves. This would include all Federal Court Judges from the U.S. Supreme Court (highest) to all Federal District Courts (lowest). All other states have statutes or judicial rules that require judges to recuse themselves in similar circumstances. The test for refusal almost always involves the appearance of bias or a conflict of interest.

To use you example with Justice Ginsberg, one does not have the ability to review a U.S. Supreme Court justice's refusal to recuse him/herself. This is because the Supreme Court is the court of last resort and no other judicial body has the ability to review their decisions. Looking at judicial recusal in the context of other courts, any lower court can be reviewed by the next highest court. This is true of both the state and federal system.

For the federal system it would go: Federal District Court ==> Court of Appeals ==> U.S. Supreme Court

For a state court, it would go: Trial Court => Intermediate appellate court => State Supreme Court ==> U.S. Supreme Court.

For an example of the U.S. Supreme Court reviewing a state supreme court justice's decision to not recuse himself, see Williams v. Pennsylvania, 579 U.S. ___ (2016). In this case, the U.S. Supreme Court ruled that the PA judge should have recused himself because under the Due Process Clause, there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.

  • 2
    Moreover, I do not see any practical way to override SCOTUS that doesn't ultimately reduce to chaos -- for example, allowing the executive and legislative branches to overrule SCOTUS would essentially mean that the Supreme Court has no function. – user6726 Jul 15 '16 at 18:07
  • @user6726: How about some procedure similar to judicial impeachment? – Mowzer Jul 15 '16 at 18:20
  • @mowzer, Judicial Impeachment would be an option; however, the judicial might be impeached until after a decision is issued. – Mr_V Jul 15 '16 at 18:37
  • @User6726 - I completely agree that there is not practical way to override SCOTUS that doesn't reduce to chaos. The executive or legislative branches overriding the Supreme Court is a nightmarish separations of powers problem that could only be solved with a constitutional amendment. As you say . . . chaos! – Mr_V Jul 15 '16 at 18:40
  • For example, twice they tried to boot W.O. Douglas, and once Abe Fortas. Art 2 S 4 should preclude removal for ideological reasons; so to get any traction with RBG, 28 USC 455 would have to be moved to Title 18. – user6726 Jul 15 '16 at 19:28
4

As several other people have stated 28 U.S.C 445 declares that Judges, including justices of the Supreme Court, should consider recusing themselves in such situations. Yet there is no higher court to enforce such a recusal. In such a situation by separation of powers there can be no remedy, except the ultimate remedy of impeachment.

Impeachment allows Congress to remove judges that are clearly not following the rules, including Supreme Court Justices. If there is a pattern of egregious conduct, Congress may decide to take this action.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.