By Joseph Ax
NEW YORK, Sept 28 (Reuters) - Justices on the U.S. Supreme
Court should offer a written explanation when they either recuse
themselves from a case or deny a request for disqualification,
the New York City Bar Association concluded in a report released Friday.
All too often, justices fail to disclose their reasoning
when stepping down from a case or refusing to do so when asked,
inviting speculation about hidden bias, according to the 39-page
report, written by the bar's ethics committee.
"Opening the Court's 'black box' in this limited respect
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," the
committee wrote in making its recommendation.
The recusal of Supreme Court justices is a longstanding
matter of controversy, most recently in connection with the
court's consideration of President Obama's healthcare overhaul.
Justice Elena Kagan, who served as solicitor general when the
Justice Department first began formulating its defense of the
law, and Justice Clarence Thomas, whose wife has ties to
conservative organizations opposing the law, both declined to
step aside from the case.
"Justice Kagan herself, as well as Justice Thomas, made no
public statement on the issue and simply proceeded to hear the
case and cast their votes," the report said. "As this and other
controversies swirled around the Court in connection with its
consideration of the health care law, polls indicated that
public confidence in the Court was reaching historic lows, while
the belief that justices are influenced by personal or political
considerations was reaching historic highs."
A bill introduced in Congress in 2011, the Supreme Court
Transparency and Disclosure Act, has called for public
disclosure of a justice's reasoning for either granting or
denying a request for recusal. The ethics committee's report
lauded that provision but did not offer support for the law's
other sections, including a process for reviewing recusal
The bill has stalled in the House of Representatives.
According to the report, former justice William Rehnquist
became the first justice to offer a memorandum explaining a
recusal decision in 1972. He declined to stand down in Laird v.
Tatum, a case involving the Army's surveillance of political
activity, despite the fact that he had publicly commented on the
merits of the case while working for the Justice Department's
Office of Legal Counsel.
Since then, the report noted, such written explanations have
been few and far between. Justice Antonin Scalia was one of the
few, when he refused to step down from an energy policy task
force case in which then vice president Dick Cheney was
involved, even though he went on a hunting trip with Cheney
weeks after the court agreed to hear the case.
"There is rarely any transparency with respect to how
Justices make recusal decisions, even though questions of
unfaithfulness and bias, which have arisen since the Court's
inception, will only continue to be raised," the committee
The report noted that the American Bar Association's Model
Code of Judicial Conduct calls for judges to "disclose on the
record information that the judge believes the parties or their
lawyers might consider relevant to the question of
disqualification, even if the judge believes there is no real
basis for disqualification."
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