Can a judge or justice (I'm interested in both) file a lawsuit that would normally fall under their own court's jurisdiction?

What happens in such a scenario? I'm especially interested in the answer in the Supreme Court's case, but I'm curious about other courts' cases as well.

  • 1
    In the supreme court, the other justices would probably encourage the justice/plaintiff to recuse him or herself, but a justice cannot otherwise be forced to do so.
    – phoog
    Commented Oct 21, 2018 at 14:25
  • @phoog If a Supreme Court justice saw fit to not recuse himself from a case in which he was the plaintiff, impeachment would suffice to force him, I think.
    – D M
    Commented Oct 21, 2018 at 19:06
  • @DM yes, that could happen, but it might not.
    – phoog
    Commented Oct 21, 2018 at 23:26

2 Answers 2


Generally, they can file such a lawsuit, but they cannot judge it.

In federal courts, 28 USC 455 applies:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding...

And in federal court, this cannot be waived.

(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b).

State laws vary, of course. For example, under Wisconsin law 757.19:

(2)Any judge shall disqualify himself or herself from any civil or criminal action or proceeding when... a judge is a party or a material witness, except that a judge need not disqualify himself or herself if the judge determines that any pleading purporting to make him or her a party is false, sham or frivolous.

But under Wisconsin law, unlike federal law, this conflict of interest can be waived if everyone agrees:

Any disqualification that may occur under sub. (2) may be waived by agreement of all parties and the judge after full and complete disclosure on the record of the factors creating such disqualification.

This isn't just theoretical, by the way - it does happen sometimes. In West Virginia, the state legislature recently decided to impeach the entire state supreme court. One of the justices filed suit against this, and the court had to appoint substitute judges to hear the case, because they all had to recuse themselves.

  • +1 awesome, thank you! To be clear, are you saying 28 USC 455 applies to US Supreme Court? It's not entirely clear to me since I think "justice" is also the term used for appellate courts, and it would seem like a potential separation of powers violation to have a law like that regarding the Supreme Court? But I don't know.
    – user541686
    Commented Oct 21, 2018 at 22:54
  • 1
    28 USC 451 - "The term 'justice of the United States' includes the Chief Justice of the United States and the associate justices of the Supreme Court."
    – D M
    Commented Oct 21, 2018 at 22:55
  • 1
    As for separation of powers, the Constitution says: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." - So Congress does have at least some ability to regulate what the Supreme Court can do.
    – D M
    Commented Oct 21, 2018 at 23:00

Judges and justices can file lawsuits like anyone else, but ordinarily the judges who are colleagues of the judge or justice would recuse themselves and it would be assigned to another venue at trial (in the case of a trial court judge), and on appeal would be assigned to judges who don't have a personal relationship with the judge (possibly sitting by assignment from another appellate jurisdiction or by senior judges who weren't on the bench when this judge was on the bench).

A U.S. Supreme Court justice's suit would not be considered recusal worth by an unfamiliar lower court judge who is only theoretically in the jurisdiction of the justice and no suit by a U.S. Supreme Court justice has ever been deemed cert worthy. If it did reach the U.S. Supreme Court, the Justice would be expected to, but not required in any enforceable way, to recuse from hearing the case.

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