(Credit: ALM)

On May 15, U.S. Supreme Court Justices Elena Kagan and Neil Gorsuch recused themselves from the court’s decision to deny review in Jawad v. Gates, a long-running dispute over the handling of torture claims by a Guantanamo detainee.

Following long-standing Supreme Court practice, neither justice explained the recusal, though it’s safe to guess the reason was their prior government positions: Kagan as solicitor general from 2009 to 2010, and Gorsuch as principal deputy associate attorney general from 2005 to 2006. During that time, according to Justice Department emails released during his recent confirmation hearings, Gorsuch visited Guantanamo Bay and oversaw related litigation.

But there is a new twist to the court’s tradition of keeping mum about the reasons for recusals: it was not always so.

In a little-noticed step toward greater transparency, the U.S. Supreme Court recently posted online thousands of scanned pages from the court’s journal dating back to 1889. The journal is the official chronicle of the court’s daily proceedings.

The pages tell mostly mundane news – new lawyers sworn into the Supreme Court bar, and which justices were present or absent from the bench on a given day.

But if you scroll through the pages, you may find something surprising: a century or so ago, the court would sometimes explain briefly why justices recused themselves.

In 1889, there was this entry: “Mr. Justice [David] Brewer, not having been a member of the court when this case was argued, took no part in the decision.” In 1904, another: “Mr. Justice [Edward] White, not having been present at the argument, took no part in this decision.”  

Gabe Roth of Fix the Court, a group that advocates for greater transparency from the court, ran across the nuggets from the old journals and quickly used them to urge the court to resume the practice. In a letter to the court’s clerk, Scott Harris, Roth noted that in recent years, justices on three occasions have mistakenly participated in cases in which stock-related conflicts should have compelled them to recuse.

“If the justices were more attuned to their conflict-inducing holdings and relationships – and if they were more open about them to the public – they would be less likely, I believe, to miss a conflict in the course of their work,” Roth wrote.

Modern-day justices have offered an array of reasons for not divulging the reasons for recusal. Some say it would take too much time, while others suggest it could spoil relationships between justices who cherish their individuality by essentially running “nine separate law offices.” One justice’s explanation for recusal might pressure other justices into recusing in similar situations, some justices have said privately.

The most detailed discussion of the issue by justices came in a March, 2015 House subcommittee hearing on the court’s budget. Rep. Sanford Bishop Jr., D-Georgia, asked Justices Anthony Kennedy and Stephen Breyer why the court was not more transparent about reasons for recusal. Here are their responses:

Kennedy: “There is an argument that the reason for recusals should be more apparent. I’m not sure about that. In the rare cases when I recuse, I never tell my colleagues, oh, I’m recusing because my son works for this company and it’s a very important case for my son. Why should I say that? That’s almost like lobbying. The reason for recusal should never be discussed. It is obvious sometimes when company A is before the court and our public disclosure paper indicates that a judge owns stock in company A.”

Breyer: “What am I nervous about? The Supreme Court is different from a court of appeals and a district court. … Why is it different here? Because in the court of appeals, if I recuse myself or in the district court, they can get another judge. Judges are fungible. They’re not in the Supreme Court. You can’t get a substitute. And I wouldn’t say there’s any lawyer in the country who would do this, but it is logically conceivable that a lawyer might sometime think of the idea of bringing up an issue in order to have a panel that is more favorable. I know no such lawyer, but it is conceivable. And therefore I think we have to be careful. … Moreover, I have a lot on my schedule.”

James Sample, a Hofstra University Maurice A. Deane School of Law professor who has written extensively about judicial recusals, said requiring justices to explain their recusal decisions might be problematic. But on the rare occasion when justices do discuss recusals in public, he said, “their explanations benefit the court, the public, and the law.”

As an example, Sample cited the late Justice Antonin Scalia’s 2004 memorandum explaining why he did not recuse in a case in which Vice President Dick Cheney was a named party. Scalia had recently gone on a hunting trip with Cheney. Scalia wrote, “A rule that required members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling.”

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro.

On May 15, U.S. Supreme Court Justices Elena Kagan and Neil Gorsuch recused themselves from the court’s decision to deny review in Jawad v. Gates, a long-running dispute over the handling of torture claims by a Guantanamo detainee.

Following long-standing Supreme Court practice, neither justice explained the recusal, though it’s safe to guess the reason was their prior government positions: Kagan as solicitor general from 2009 to 2010, and Gorsuch as principal deputy associate attorney general from 2005 to 2006. During that time, according to Justice Department emails released during his recent confirmation hearings, Gorsuch visited Guantanamo Bay and oversaw related litigation.

But there is a new twist to the court’s tradition of keeping mum about the reasons for recusals: it was not always so.

In a little-noticed step toward greater transparency, the U.S. Supreme Court recently posted online thousands of scanned pages from the court’s journal dating back to 1889. The journal is the official chronicle of the court’s daily proceedings.

The pages tell mostly mundane news – new lawyers sworn into the Supreme Court bar, and which justices were present or absent from the bench on a given day.

But if you scroll through the pages, you may find something surprising: a century or so ago, the court would sometimes explain briefly why justices recused themselves.

In 1889, there was this entry: “Mr. Justice [David] Brewer, not having been a member of the court when this case was argued, took no part in the decision.” In 1904, another: “Mr. Justice [Edward] White, not having been present at the argument, took no part in this decision.”  

Gabe Roth of Fix the Court, a group that advocates for greater transparency from the court, ran across the nuggets from the old journals and quickly used them to urge the court to resume the practice. In a letter to the court’s clerk, Scott Harris, Roth noted that in recent years, justices on three occasions have mistakenly participated in cases in which stock-related conflicts should have compelled them to recuse.

“If the justices were more attuned to their conflict-inducing holdings and relationships – and if they were more open about them to the public – they would be less likely, I believe, to miss a conflict in the course of their work,” Roth wrote.

Modern-day justices have offered an array of reasons for not divulging the reasons for recusal. Some say it would take too much time, while others suggest it could spoil relationships between justices who cherish their individuality by essentially running “nine separate law offices.” One justice’s explanation for recusal might pressure other justices into recusing in similar situations, some justices have said privately.

The most detailed discussion of the issue by justices came in a March, 2015 House subcommittee hearing on the court’s budget. Rep. Sanford Bishop Jr., D-Georgia, asked Justices Anthony Kennedy and Stephen Breyer why the court was not more transparent about reasons for recusal. Here are their responses:

Kennedy: “There is an argument that the reason for recusals should be more apparent. I’m not sure about that. In the rare cases when I recuse, I never tell my colleagues, oh, I’m recusing because my son works for this company and it’s a very important case for my son. Why should I say that? That’s almost like lobbying. The reason for recusal should never be discussed. It is obvious sometimes when company A is before the court and our public disclosure paper indicates that a judge owns stock in company A.”

Breyer: “What am I nervous about? The Supreme Court is different from a court of appeals and a district court. … Why is it different here? Because in the court of appeals, if I recuse myself or in the district court, they can get another judge. Judges are fungible. They’re not in the Supreme Court. You can’t get a substitute. And I wouldn’t say there’s any lawyer in the country who would do this, but it is logically conceivable that a lawyer might sometime think of the idea of bringing up an issue in order to have a panel that is more favorable. I know no such lawyer, but it is conceivable. And therefore I think we have to be careful. … Moreover, I have a lot on my schedule.”

James Sample, a Hofstra University Maurice A. Deane School of Law professor who has written extensively about judicial recusals, said requiring justices to explain their recusal decisions might be problematic. But on the rare occasion when justices do discuss recusals in public, he said, “their explanations benefit the court, the public, and the law.”

As an example, Sample cited the late Justice Antonin Scalia ’s 2004 memorandum explaining why he did not recuse in a case in which Vice President Dick Cheney was a named party. Scalia had recently gone on a hunting trip with Cheney. Scalia wrote, “A rule that required members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling.”

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro.