See subject really. But basically, in cases where there is an obvious conflict of interest is it possible to request or force a justice to be recused?
Request? Sure. It does occasionally happen.
Force? No. The Supreme Court is a co-equal branch of government, and is the highest authority in the judicial branch. The Constitution makes no mention of or provisions for recusal for sitting justices. The other justices might put peer pressure on the justice in question to recuse themselves, but there’s no mechanism to force it.
Of course it’s possible to request it. That would fall under the general heading of the First Amendment, which is and remains the law of the land.
But, as far as I can tell from a quick perusal of Wikipedia and an ABA article on the topic, judicial recusal is basically voluntary, a matter of norms and optics rather than obligations. If you have a justice who absolutely refuses to recuse himself or herself from a case, there isn’t very much anybody can do about it.
Disclaimer: I’m very far from an expert on this topic, and I would welcome correction from people who know more.
SC Justices recuse themselves fairly regularly. Kagan recused herself from a number of cases because she had been involved with them in earlier stages as Solicitor General. Satomayor recused herself from cases appealed from the appellate courts where she was involved. Alito has frequently recused himself from cases involving companies in which he is invested, and so on.
It’s the judge’s decision to recuse, and appellate judges almost always make that decision proactively before anyone asks them to.
One famous one was the Watergate tapes case. Rehnquist (at that time the most junior judge) recused himself because he’d been in the Justice department up until his appointment.
There was a case back in the 1950s against ALCOA, the gigantic aluminum company, where so many Justices recused themselves because they owned its stock that the Court could not assemble a quorum. Congress had to empower a special panel of the Second Circuit Court of Appeals to hear the final appeal.
One famous counter-example was Marbury v Madison. John Marshall was so personally involved in the case he was practically the co-defendant. But he not only didn’t recuse himself, he went on to write the decision.
Recusal of a federal judge, including a justice of the U.S. Supreme Court, is required in appropriate cases by Title 28, Section 455 of the United States Code, which provides that any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. The text is at https://www.law.cornell.edu/uscode/text/28/455.
The problem is that, for Supreme Court justices, there is no enforcement mechanism. Instead, it is solely up to the justice as to whether to recuse himself or herself.
There are enforcement mechanisms for other federal judges and magistrates. Failure to recuse when required is a basis for appeal. In addition, lower court judges are subject to the Code of Conduct for United States Judges, which addresses recusals, among other things.
Would a conflict of interest or appearance of prejudice ever be considered so egregious as to be grounds for impeachment? Or doesn’t that apply?
It certainly could be. The power of impeachment is essentially unlimited; Congress could impeach someone for wearing ugly socks if they wanted.
Failures to recuse, if sufficiently egregious, would be a violation of the U.S. Code and theoretically could be a basis for impeachment. However, there has never been a case of impeachment based solely on failures to recuse.
Clarence Thomas has been problematic on recusing himself from cases. Here’s a Google search to get you started.
He refused to recuse himself on 2011 and 2017 on Obamacare issues despite his wife being a lobbyist for a health care company. He even spent time on the company’s dollar at least once. Also his wife apparently lobbied on the travel ban and he didn’t recuse himself. He was pointedly asked to recuse himself. Quite controversial.
OTOH, it was odd way back in 2007 when he recused himself on a Wachovia matter but didn’t explain, but the reason later came to light.
Stephen Reinhardt, of the Ninth Circuit, faced a nearly identical issue when he was asked to recuse himself from ruling on the Prop 8 case, when his wife was Executive Director of the ACLU.
He wrote:
Do you believe Reinhardt should have recused himself?
Strike this; didn’t see this was GQ and not GD.
I have no objection to it being moved to GD. My question is answered.
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