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Tuesday, May 16, 2023

SCOTUS Needs Recusal Reforms (and more)

My new column at The Hill addresses the Supreme Court's inadequate recusal practice (among other ethics issues), including a set of cases in which Justice Sotomayor failed to recuse herself when she should have.

The essay also discusses other problems, but here is the gist of the recusal issue:

The Supreme Court's recusal process is its next ethical conundrum

BY STEVEN LUBET, OPINION CONTRIBUTOR - 05/16/23 

As journalists continue to dig into the justices financial reports and other documents, questions continue to arise about their recusal and disclosure practices.

Some of the issues are more serious than others. It was recently reported, for example, that Justice Sonia Sotomayor failed to recuse herself in multiple cases involving her publisher, Penguin Random House, despite having received over $3 million from the company via an advance and subsequent royalties. 

Sotomayor's participation in the Penguin Random House cases -- in 2013, 2019 and 2020 --  is emblematic of the court's unacceptable approach to recusal. Although Sotomayor had no direct financial interest in the outcome of the cases, it should have been obvious that her continuing receipt of royalties from one party could create an appearance of favoritism. The federal recusal statute requires disqualification whenever a justice's impartiality might reasonably be questioned, which was surely applicable to a justice who anticipated substantial future income from a party to a case. 

Nonetheless, Sotomayor's decision to participate in the Penguin Random House cases was hers alone, in keeping with the courts historic practice, with no review by the other justices.

The inadequacy of the court's practice is highlighted by the recusal in the same cases by then-Justice Stephen Breyer, who also received royalties from Penguin Random House. The two recusal decisions are contradictory. Receipt of royalties either does or doesn't create a reasonable question of impartiality, which should not differ according to the inclinations of individual justices. Without review by the full court, there is no way to resolve such inconsistencies, much less provide guidance to lower court judges who are governed by the same statute. 

You can read the entire essay at The Hill.

Some readers may have seen Stephen Carter's recent column at Bloomberg in which he calls the Sotomayor recusal issue “farcical.” All I can say is that he must be reading a different statute than 28 U.S. Code § 455.

Comments are open (will be monitored).

Posted by Steve Lubet on May 16, 2023 at 12:18 PM | Permalink

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