Judicial disqualification

On Sep 28th 2021, the Wall Street Journal's investigative team found that 131 judges did not recuse themselves in cases where they had a financial interest through ownership of stocks in the relevant parties. 2/3 of cases ended with a verdict favorable to the party in which the judge owned stock. Explanations given for the lapse included: unknown ownership via brokers investing on behalf of judge, unaware of the laws regarding proper disclosure and recusal, spelling errors and ownership of subsidiaries (e.g. Exxon Corp. vs Exxon Oil which is a subsidiary), ownership of stocks held not by the judge but by close family members (spouses, children, etc), and finally insistence that stock ownership did not influence their decisions especially if the outcome did not change stock price. All of these explanations are still a violation of federal law.[2]

In the Supreme Court of the United States, the Justices typically recuse themselves from participating in cases in which they have financial interests. For example, Justice Sandra Day O'Connor generally did not participate in cases involving telecommunications firms because she owned stock in these firms, and Justice Stephen Breyer has disqualified himself in some cases involving insurance companies because of his participation in a Lloyd's of London syndicate. Justices also have declined to participate in cases in which close relatives, such as their children, are lawyers for one of the parties. Even if the family member is connected to one of the parties but is not directly involved in the case, justices may recuse themselves – for instance Clarence Thomas recused himself in United States v. Virginia because his son was attending Virginia Military Institute, whose policies were the subject of the case. On occasion, recusal occurs under more unusual circumstances; for example, in two cases, Chief Justice William H. Rehnquist stepped down from the bench when cases were argued by Arizona attorney James Brosnahan, who had testified against Rehnquist at his confirmation hearing in 1986. Whatever the reason for recusal, the United States Reports will record that the named justice "took no part in the consideration or decision of this case".

A notable case was the 2001 death penalty appeal by Napoleon Beazley, convicted of a 1994 murder, in which a full three justices recused themselves due to personal ties to the victim's son, federal appeals court judge J. Michael Luttig. Luttig had previously clerked for Justice Scalia, and had led the confirmation efforts on behalf of both David Souter and Clarence Thomas. The death sentence was upheld all the same.

Historically, standards for recusal in the Supreme Court and lower courts were less rigorous than they have become in more recent years. In the 1803 case of Marbury v. Madison, Chief Justice John Marshall participated in the decision and authored the opinion of the Court even though Marshall's actions as Secretary of State two years prior could be seen as the subject of the proceeding. On the other hand, Marshall did recuse himself in both the 1813 and 1816 hearings of Martin v. Hunter's Lessee, despite its equally significant constitutional implications, as he and his brother had contracted with Martin to buy the land in dispute. Moreover, during the 19th century, the U.S. federal court system was structured so that an appeal from a judge's decision was often heard by an appellate panel containing the same judge, who was expected to sit in impartial review of his own earlier ruling. This situation is no longer permissible, and 28 U.S.C. § 47 provides that "No judge shall hear or determine an appeal from the decision of a case or issue tried by him."

A notable dispute over recusal in U.S. Supreme Court history took place in 1946, when Justice Hugo Black participated in deciding the Jewell Ridge Coal case, although a former law partner of Black argued for the prevailing side. The losing party in the 5–4 decision sought reargument on the ground that Black should have been disqualified; Black declined to recuse himself and the decision stood, but Justice Robert H. Jackson wrote a short opinion suggesting that the decision that Black should sit in the case was Black's alone and the Court did not endorse it. The dispute aggravated infighting between Black and Jackson, and it has been suggested that this was one of the reasons that, when Chief Justice Harlan Fiske Stone died, President Harry S. Truman appointed Fred M. Vinson to succeed Stone rather than promote a sitting Associate Justice to Chief Justice.

In 1973, then-Associate Justice Rehnquist wrote a lengthy in-chambers opinion declining to recuse himself in Laird v. Tatum, a case challenging the validity of certain arrests, even though Rehnquist had previously served as a White House lawyer and opined that the arrest program was valid.[3] In 2004, Justice Antonin Scalia wrote an opinion declining to recuse himself in a case to which Vice President Dick Cheney was a party in his official capacity, despite the contention of several environmental groups that Scalia's participation created an appearance of impropriety because Scalia had recently participated in a widely publicized hunting trip with the Vice President.[4] The same year, however, Scalia recused himself without explanation in Elk Grove Unified School District v. Newdow, a First Amendment case challenging inclusion of the words "under God" in the Pledge of Allegiance, after giving a public speech in which Scalia stated his view that Newdow's claims were meritless.

In 1974, federal judge Leon Higginbotham issued his decision in Comm. of Pa. v. Local 542, Int'l Union of Operating Engineers, explaining why he as an African American judge with a history of active involvement in the civil rights struggle was not obligated to recuse himself from presiding over litigation concerning claims of racial discrimination.[5] He held, in an opinion that was followed by later judges, including a series of black judges who faced recusal requests, that a judge should not be forced to recuse solely because of their membership in a minority group.[6] Jewish federal Judge Paul Borman relied on the Higginbotham opinion in part in his 2014 decision not to recuse himself from the trial of Palestinian-American Rasmea Odeh.[6] Similarly, in 1994, Jewish then-federal-Judge Michael Mukasey refused to recuse himself in a case concerning the 1993 World Trade Center bombing, warning that his recusal would "disqualify not only an obscure district judge such as the author of this opinion, but also Justices Brandeis and Frankfurter ... each having been both a Jew and a Zionist".[6]

Outside the judicial system, the concept of recusal is also applied in administrative agencies. When a member of a multi-member administrative body is recused, the remaining members typically determine the outcome. When the sole occupant of an official position is recused, the matter may be delegated to the official's deputy or to a temporarily designated official; for example, when the Solicitor General of the United States is recused from a case, the Deputy Solicitor General will handle the matter in his or her place. On March 2, 2017, Jeff Sessions, Attorney General of the U.S., recused himself while the department investigated Russian interference in the 2016 election due to concerns over his impartiality as a member of the Trump campaign team.[7]

Concepts analogous to recusal also exist in the legislative branch. Members with a personal financial interest in a measure should not vote according to the rules of the United States Senate and House of Representatives. In such cases, the Senator or Representative may record a vote of "present" rather than "yea" or "nay".