As the oral argument in the Fisher v. University of Texas affirmative action case was about to get underway Oct. 10, Supreme Court Justice Elena Kagan stood up from her chair and walked out, signaling her recusal in the case.
Her exit was anticipated, as she had recused from orders issued in the case as early as February. The universally accepted reason for her recusal is that she was involved in earlier stages of the dispute during her tenure as solicitor general.
But Kagan did not say that was the reason, nor did she give any other explanation. By longstanding tradition, justices almost never publicly explain their recusal decisions. That tradition is increasingly coming under fire.
Earlier this month, the New York City Bar Association added its voice to those urging Supreme Court justices to publicly explain their decisions to bow out of – or stay in – cases before them.
“Opening the Court’s ‘black box’ in this limited respect,” the association said in a report, “will help the parties and the public to have confidence that the judicial oath to hear cases ‘faithfully and impartially’ is honored in practice by the highest court in the land.”
In a report issued earlier this month, the association reviewed the history and context of Supreme Court ethical issues and conflicts of interest – going back to Marbury v. Madison, decided by Chief Justice John Marshall, even though as secretary of state, he was a primary figure in the dispute before the court. More recently, the report noted that now-retired Justice Sandra Day O’Connor recused so often during her tenure because of stocks she owned that an acronym developed to describe her actions: OOPS, for O’Connor Owns Party Stock.
A bill introduced in Congress last year, the Supreme Court Transparency and Disclosure Act of 2011, would require justices to disclose their reasons for recusing in a given case, or for not recusing in response to a request that the justice do so. It also would hold Supreme Court justices to the same code of conduct that governs judges in lower federal courts, and would establish a process for reviewing ethical complaints against members of the court as well as their recusal decisions.
The New York City bar group does not endorse most of those provisions “because of constitutional concerns, specifically the separation of powers doctrine and the need to maintain the court’s independence.” But the association does agree that justices need to be more transparent about recusals. It would be preferable if the justices start making recusal disclosures on their own, the report states, but Congress could constitutionally impose that requirement on them.
The report was drafted by the association’s committee on government ethics, chaired by Jeremy Feigelson, a partner at Debevoise & Plimpton. In an interview, Feigelson said it was natural for the association to study the Supreme Court recusal issue. The association “comments on national issues all the time,” he said.
What attracted the association to the issue, he said, was the partisan sniping aimed at forcing Justices Kagan and Clarence Thomas to recuse in the Affordable Care Act cases last term. Liberals said Thomas had a conflict because of his wife Virginia’s involvement with conservative groups opposing the law. Conservatives targeted Kagan, alleging that as solicitor general before joining the court, she was involved in preparing to defend the law. Neither justice recused – or explained why.
These and other controversies were highlighted in the media, the report noted, as polls indicated that the court’s public approval declined, and more and more members of the public said the justices were influenced by political considerations.
“The more we dug into it, the more we felt the court was not doing itself any favors” by staying silent about recusal decisions, said Feigelson.
Written explanations of recusal decisions, the report stated, “achieve the dual purpose of informing the public of the justice’s reasoning and forcing the justice to examine his or her biases.” It would also be a small burden for the justices, because their recusals are infrequent – as are motions asking them to recuse.
In private, some justices have said they don’t want to be required to explain their recusals publicly in part because their justification in a given case might force a colleague to do the same in a similar case – when such decisions should be made individually, without pressure from colleagues.
Asked about that concern, Feigelson said, “If a little transparency leads to more transparency, that’s a good thing.”
The report predicts that a more open policy about recusals would reap benefits for the court’s public image. “While there may be some negative public reaction to certain disclosures, on the whole additional transparency should improve the public’s perception of the court.”
Feigelson said the report will be circulated to all nine justices and to the chairs of the Senate and House judiciary committees.
Tony Mauro is a reporter for The National Law Journal, a Legal affiliate based in New York.