# Can a US Supreme Court justice be asked/forced to recuse themselves?
**URL:** https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605
**Category:** Factual Questions
**Created:** [October 7, 2018, 1:06pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605 "2018-10-07T13:06:56Z")
**Posts on this page:** 15
**Page:** 1
### Author:  [@BeepKillBeep](https://boards.straightdope.com/u/BeepKillBeep)
#### Post date: [October 7, 2018, 1:06pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/1 "2018-10-07T13:06:56Z")
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?
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### Author:  [@gdave](https://boards.straightdope.com/u/gdave)
#### Post date: [October 7, 2018, 1:12pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/2 "2018-10-07T13:12:40Z")
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.
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### Author:  [@Fretful\_Porpentine](https://boards.straightdope.com/u/Fretful_Porpentine)
#### Post date: [October 7, 2018, 1:19pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/3 "2018-10-07T13:19:27Z")
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](https://en.wikipedia.org/wiki/Judicial_disqualification#Supreme_Court_cases) and [an ABA article on the topic](https://abaforlawstudents.com/2018/02/21/supreme-court-justices-recusal-code-conduct-united-states-judges/), 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.
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### Author:  [@friedo](https://boards.straightdope.com/u/friedo)
#### Post date: [October 7, 2018, 1:56pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/4 "2018-10-07T13:56:53Z")
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.
[Here’s a cool graph I found](https://empiricalscotus.files.wordpress.com/2017/02/recusalstack1.png).
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [October 7, 2018, 2:14pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/5 "2018-10-07T14:14:34Z")
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.
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### Author:  [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)
#### Post date: [October 7, 2018, 6:52pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/6 "2018-10-07T18:52:16Z")
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.
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### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [October 7, 2018, 11:51pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/7 "2018-10-07T23:51:31Z")
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.
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### Author:  [@jbaker](https://boards.straightdope.com/u/jbaker)
#### Post date: [October 8, 2018, 9:51pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/8 "2018-10-08T21:51:45Z")
> [@Fretful\_Porpentine](#):
>
> 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](https://en.wikipedia.org/wiki/Judicial_disqualification#Supreme_Court_cases) and [an ABA article on the topic](https://abaforlawstudents.com/2018/02/21/supreme-court-justices-recusal-code-conduct-united-states-judges/), 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.
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 [28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge | U.S. Code | US Law | LII / Legal Information Institute](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.
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### Author:  [@PatrickLondon](https://boards.straightdope.com/u/PatrickLondon)
#### Post date: [October 9, 2018, 4:34am UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/9 "2018-10-09T04:34:04Z")
> [@jbaker](#):
>
> 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.
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?
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### Author:  [@friedo](https://boards.straightdope.com/u/friedo)
#### Post date: [October 9, 2018, 4:46am UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/10 "2018-10-09T04:46:07Z")
> [@PatrickLondon](#):
>
> 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.
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### Author:  [@jbaker](https://boards.straightdope.com/u/jbaker)
#### Post date: [October 9, 2018, 11:31am UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/11 "2018-10-09T11:31:12Z")
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.
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### Author:  [@ftg](https://boards.straightdope.com/u/ftg)
#### Post date: [October 9, 2018, 11:59am UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/12 "2018-10-09T11:59:16Z")
Clarence Thomas has been problematic on recusing himself from cases. Here’s a [Google search](http://www.google.com/search?complete=0&hl=en&source=hp&biw=&bih=&q=clarence+thomas+recusal&btnG=Google+Search&gbv=2) 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.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 18, 2018, 7:57pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/13 "2018-10-18T19:57:49Z")
> [@ftg](#):
>
> Clarence Thomas has been problematic on recusing himself from cases. Here’s a [Google search](http://www.google.com/search?complete=0&hl=en&source=hp&biw=&bih=&q=clarence+thomas+recusal&btnG=Google+Search&gbv=2) 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:
> [@](#):
>
> My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female. . . Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses. When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage–that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say ‘spouses’ than ‘wives,’ as by then we had as members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge Dorothy Nelson). The committee thanked me for my letter and sometime later changed the rule.
Do you believe Reinhardt should have recused himself?
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [October 18, 2018, 8:06pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/14 "2018-10-18T20:06:19Z")
> [@Bricker](#):
>
> Do you believe Reinhardt should have recused himself?
Strike this; didn’t see this was GQ and not GD.
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### Author:  [@BeepKillBeep](https://boards.straightdope.com/u/BeepKillBeep)
#### Post date: [October 18, 2018, 11:41pm UTC](https://boards.straightdope.com/t/can-a-us-supreme-court-justice-be-asked-forced-to-recuse-themselves/822605/15 "2018-10-18T23:41:21Z")
I have no objection to it being moved to GD. My question is answered.
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