Recusal

 ( Legal Ethics ) 

28 U.S.C. Section 144, captioned "Bias or prejudice of judge", provides that under circumstances, when a party to a case in a United States District Court files a "timely and sufficient motion that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party", the case shall be transferred to another judge.

The general rule is that, to warrant recusal, a judge's expression of an opinion about the merits of a case, or his familiarity with the facts or the parties, must have originated in a source outside the case itself. This is referred to in the United States as the "extra-judicial source rule" and was recognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in Liteky v. United States.

At times justices or judges will recuse themselves sua sponte (on their own motion), recognizing that facts leading to their disqualification are present. However, where such facts exist, a party to the case may suggest recusal. Controversially, each judge generally decides whether or not to recuse themself. However, where lower courts are concerned, an erroneous refusal to recuse in a clear case can be reviewed on appeal or, under extreme circumstances, by a petition for a writ of prohibition.

In certain special situations, circumstances that would otherwise call for recusal of a judge or group of judges may be disregarded, when otherwise no judge would be available to hear the case. For example, if a case concerns a salary increase payable to a judge, that judge would ordinarily be disqualified from hearing the case. However, if the pay increase is applicable to all of the judges in the court system, the judge will keep the case, because the grounds for recusal would be equally applicable to any other judge. The principle that a judge will not be disqualified when the effect would be that no judge could hear the case is sometimes referred to as the " rule of necessity".See United States v. Will, 449 U.S. 200 (1980).

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. Laird v. Tatum, 408 U.S. 824 (1972) (Rehnquist, J., in chambers). 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 Environmentalism 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. Cheney v. United States District Court, 541 U.S. 913 (2004) (Scalia, J., in chambers). 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 2009, the Supreme Court ruled 5-4 that 'excessive' campaign contributions to a justice that was elected required a justice to recuse himself, citing the Due Process Clause of the constitution.

In 2024, Justices Samuel Alito and Clarence Thomas have refused calls to recuse themselves from January 6th cases where their spouses have taken public stances or been involved in efforts to overturn the election.

A significant dispute over recusal occurred in 1946 when Justice Hugo Black participated in the Jewell Ridge Coal case despite a conflict involving his former law partner. This case highlighted the ongoing challenges in maintaining impartiality and the evolving nature of recusal practices. Throughout much of its history, the U.S. Supreme Court relied on the justices' discretion and common-law principles to decide recusal matters. 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. 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. 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. 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 Justice Brandeis and Frankfurter ... each having been both a Jew and a Zionist".