Deciding Not to Decide: The Politics of Recusals on the U.S. Supreme Court

• DOI: http://doi.org/10.1111/lasr.12090
• Published date: 01 September 2014
• Date: 01 September 2014

Deciding Not to Decide: The Politics of Recusals

on the U.S. Supreme Court

Robert J. Hume

When are U.S. Supreme Court justices more likely to recuse themselves from

cases? This article proposes a strategic model of recusal behavior, hypothesiz-

ing that the justices balance statutory guidelines concerning recusals against

other policy and institutional goals. Using data from the Supreme Court

Database, I find evidence that recusal behavior is influenced by a combination

of statutory, policy, and institutional considerations. Consistent with statutory

explanations, which emphasize the elimination of bias or its appearance,

justices are more likely to recuse themselves from cases when business interests

are before the Court, when they have served for shorter terms, and when they

have previously acted as Solicitor General. However, I also find that the

justices are less likely to recuse themselves when cases are likely to be close or

when the justices’ policy goals are likely to be advanced by participating. These

findings suggest that while the justices do follow statutory recusal guidelines,

they also have other institutional and policy incentives that lead them to

participate in cases despite their conflicts of interest.

The question of whether Supreme Court justices recuse them-

selves from cases when they should have received considerable

attention in recent years. Chief Justice John Roberts (2011) devoted

his 2011 Year-End Report on the Federal Judiciary to the subject. Much

of the controversy has centered on accusations that the justices are

not abiding by statutory and ethical guidelines when deciding

whether to recuse themselves from cases, instead choosing to par-

ticipate in high-profile cases despite apparent conflicts of interest.

For example, Justice Elena Kagan participated in the landmark

health-care decision National Federation of Independent Business v.

Sebelius (2012) despite having been Solicitor General when the legal

defenses for the Affordable Care Act, or “Obamacare,” were first

The author would like to thank the editors of the Law & Society Review and the

anonymous reviewers for their comments and suggestions, as well as colleagues in the

political science department at Fordham University for their help developing this paper at

a brown bag workshop.

Please direct all correspondence to Robert J. Hume, Department of Political Science,

Fordham University, 441 East Fordham Road, Bronx, NY 10458; e-mail: rhume@

fordham.edu.

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Law & Society Review, Volume 48, Number 3 (2014)

© 2014 Law and Society Association. All rights reserved.

developed (Barnes 2011; Biskupic 2011). Likewise, Justice Clarence

Thomas was criticized for declining to withdraw from the same case

despite the political activities of his spouse, who publicly opposed

Obamacare (Thomas 2010).

Missing from the discussion is a rigorous analysis of when

recusals on the U.S. Supreme Court are more likely to occur. In

fact, recusals are among the poorest understood features of

judging on the Supreme Court, despite the large amount of legal

commentary on the subject (Bam 2011; Bassett 2005; Flamm

2010; Frost 2005; Henke 2013; Roberts 2004; Sample 2013;

Stempel 1987). Political scientists have explored the consequences

of recusals (Black and Epstein 2005), finding that recusals do not

typically cause the justices to divide evenly, but they have yet to

examine the antecedent question of why the justices are recusing

themselves in the first place. Exacerbating the problem is the

fact that the justices have consistently refused to explain their

behavior. When they withdraw from disputes, the most that one

can typically expect is a note in the U.S. Reports stating that a

justice “took no part in the consideration or decision of this

case.” The justices rarely say more, declining even to make

public the names of cases in which they considered recusing

themselves but did not. One commentator described the justices’

reluctance to speak on the matter as a “conspiracy of silence”

(Weaver 1975: 22).

Yet, understanding the recusal process is vitally important. At

the most basic level, the participation of justices has the potential

to affect who wins and who loses cases. Given the ideological con-

sistency of the justices’ voting records (Segal and Spaeth 2002),

and how closely divided they have become on important issues

(Clark 2009; Kuhn 2012), it is reasonable to expect case disposi-

tions to turn on the disqualification of particular justices. In the

context of the health-care dispute, for example, Justice Kagan’s

recusal would have denied the majority the fifth vote that it

needed to uphold the constitutionality of the individual mandate.

Assuming that no other justices changed their votes, the Court

would have been deadlocked, with no majority opinion to guide

the lower courts, and leaving the future of the Affordable Care

Act uncertain.

More generally, understanding the recusal process is important

because it helps us to understand the extent to which the justices,

and by extension the federal judicial system, are committed to

principles of impartial justice. The promise of an impartial judi-

ciary is a bedrock principle of the American legal system and one of

the primary justifications for granting life tenure to federal judges.

It is also the animating principle of the federal recusal statute,

which requires federal judges to disqualify themselves when their

622 The Politics of Recusals

“impartiality might reasonably be questioned.”1The statute speci-

fies categories of behavior in which disqualification is warranted,

such as when judges have financial stakes in cases, when they have

participated previously in the same proceedings as counsel, and

when they have expressed opinions on the merits of the particular

cases in controversy, among other considerations.2Yet, the lack of

transparency in the recusal process has made it difficult for Ameri-

cans to evaluate whether the justices are realizing the statute’s

ideals, or for society to hold accountable those justices who are not.

According to Chief Justice Roberts, the justices follow the statu-

tory guidelines and they take their ethical responsibilities seriously.

“We are all deeply committed to the common interest in preserving

the Court’s vital role as an impartial tribunal governed by the rule of

law,” he wrote in his 2011 Year-End Report. “I have complete confi-

dence in the capability of my colleagues to determine when recusal

is warranted. I know that they each give careful consideration to any

recusal questions that arise in the course of their judicial duties” (10).

These comments echo testimony that Justice Anthony Kennedy gave

before a congressional subcommittee in 2011. “Of course the Court

has to follow rules of judicial ethics,” he said. “That is part of our

oath. That is part of our obligation of neutrality” (Transcript 2011).

In tension with these assurances is research finding that

Supreme Court justices are policy-motivated decision makers

(Segal and Spaeth 2002) who are forward thinking about the con-

sequences of their behavior for the Court’s policy output (Epstein

and Knight 1998; Maltzman, Spriggs, and Wahlbeck 2000). We

know that policy goals influence the decision on the merits (Segal

and Spaeth 2002), the assignment of the majority opinion (Rosen

2007; Wahlbeck 2006), the content of the majority opinion

(Maltzman, Spriggs, and Wahlbeck 2000), the decision to grant

certiorari (Caldeira, Wright, and Zorn 1999; Perry 1991), and the

justices’ conduct at oral arguments (Black, Johnson, and Wedeking

2012), so there is every reason to think that policy considerations

also affect justices’ decisions about whether to recuse themselves.

Sitting out of cases denies justices the opportunity to influence the

final votes on the merits and the contents of majority opinions,

policy costs that might sometimes be too great for justices, even if

they risk damaging the Court’s legitimacy by participating.

Justices also have institutional incentives to participate in cases

that they must balance against the statutory and ethical guidelines.

Among these incentives is the need for the justices to decide the cases

before them, an institutional responsibility that is compromised

when recusals cause the Court to lack a quorum or divide evenly.

128 U.S.C. § 455 (a).

228 U.S.C. § 455 (b).

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