Vol. 26 No. 5 (September 2016) pp. 103-105

DISQUALIFYING THE HIGH COURT: SUPREME COURT RECUSAL AND THE CONSTITUTION by Louis J. Virelli III. Lawrence, Kansas: University Press of Kansas, 2016. 275 pp. Cloth $39.95. ISBN: 978-0-7006-2271-9.

Reviewed by Debra Lyn Bassett, John J. Schumacher Chair and Professor of Law, Southwestern Law School. Email: dbassett@swlaw.edu.

Okay, stop me if you have heard this one. A guy, the named defendant in a lawsuit, offered an all-expenses-paid vacation to one of the jurists who would be hearing his case. The jurist accepted the invitation, traveling to the vacation site with the named defendant via Air Force Two. Everyone had a great time—well, everyone except a third guy who was accidentally shot by the named defendant during the trip. Oh—did I mention this was a hunting vacation? When the named defendant’s lawsuit subsequently came before the jurist’s court, the jurist insisted that he could properly participate in the decisionmaking process, and when criticized, issued a withering memorandum in which he dismissed anyone who questioned his impartiality as being unreasonable and uninformed. The case, of course, was CHENEY v. UNITED STATES DISTRICT COURT. Welcome to recusal and the United States Supreme Court.

Recusal is the term typically used to describe a member of the judiciary’s personal determination to withdraw from participating in the decisionmaking process in a particular case. Recusal guidance is found in a combination of statutes, ethics rules, case law, and ethics opinions. Yet even with that guidance, it is sometimes unclear whether recusal is mandated. When a trial-level judge elects to recuse, other judges are available to hear the case; when a trial-level judge declines to recuse, procedures exist to review, and potentially reverse, that determination. However, at the level of the United States Supreme Court, the guidance, the availability of substituted decision makers, and the potential for review of a recusal decision are all dramatically different. In a hypothetical world, each of these differences could be modified: more thorough and detailed guidance could be written; substituted decision makers could be drawn from retired Supreme Court Justices or from the federal appellate courts; procedures for reviewing a recusal decision could be created. The sticking point is that U.S. Supreme Court Justices are not merely federal judges, but rather, they comprise a co-equal branch of government. It is this “sticking point” that is the particular value and contribution of Professor Virelli’s book.

The book opens with the various historical approaches to recusal generally, from the Code of Justinian through Blackstone’s COMMENTARIES, and from the U.S. Congress’s first recusal statute in 1792 through its most recent statutory amendments in 1974. The book then delves deeper, offering a review of recusal specifically at the U.S. Supreme Court, from Chief Justice John Marshall to present day. Readers will recognize many of the controversies discussed, but might not have been aware of some of the detailed information presented. At this point, the book’s focus turns to the constitutional implications of Supreme Court recusal, undertaking a two-part analysis: first, whether recusal is part of the Article III judicial power, and second, whether the constitutional separation-of-powers doctrine prevents Congress from legislating in the area of the Supreme Court’s recusal requirements and determinations.

The book presents an historical summary on separation of powers and disputes between branches of government—addressing historical evidence from the Constitutional [*104] Convention and ratification debates, the longstanding recusal practices employed by the Supreme Court, and whether other constitutional provisions might be applicable to recusal (such as the Exceptions Clause, the Necessary and Proper Clause, and the Impeachment Clauses). Professor Virelli ultimately concludes that “Congress may not control the substance of the justices’ recusal decisions because doing so would unconstitutionally interfere with the Court’s inherent power to decide cases properly before it” (p. 94). This is the book’s central and most significant contribution. I, and many others, have mentioned separation of powers concerns in our writings on recusal, but the book’s systematic and detailed analysis of this issue is exceptionally helpful, regardless of whether the reader agrees with the conclusion.

The book does not stop here, but instead attempts to reach further, contending that the Supreme Court recusal practices, as a constitutional matter, come within the Due Process Clause. Professor Virelli candidly acknowledges that the Supreme Court “has never considered how due process affects its own recusal decisions” (p. 123), and that “Congress has not explicitly connected its regulation of recusal to due process” (p. 139). However, he asserts that due process “has been a consistent presence in judicial recusal,” “accurately describes current Supreme Court practice,” and that the Due Process Clause, as the constitutional source of recusal practices, raises no separation of powers issue (pp. 120-21). Despite appearing to acknowledge that Due Process recusal “creates a floor, rather than a ceiling, for recusal standards” (p. 133), Professor Virelli states that “the Due Process Clause requires recusal when a judge exhibits a reasonable probability of bias” (p. 161), and thus opines that “the standard for Supreme Court recusal should be the probability-of-bias test” (p. 162).

Despite Professor Virelli’s enthusiasm for governing Supreme Court recusal through the Due Process Clause, this latter portion of the book is less persuasive. I offer three examples.

First, the book appears to ascribe a broader reach to due-process recusal than the Court itself has described. Although Congress has enlarged the grounds for statutory recusal over time, the Supreme Court consistently has distinguished between recusal that is required by a statute or an ethical rule, as contrasted with recusal that involves circumstances so egregious as to rise to a due process violation. In 2009, the Court cautioned that “[t]he Due Process Clause demarks only the outer boundaries of judicial disqualifications,” and stated that the constitutional due process standard is implicated only in “rare instances.” However, applying this standard to the Supreme Court, Justice Sandra Day O’Connor recused herself in dozens of cases. If, as the book asserts, due process indeed describes the Court’s recusal practice, such frequent recusals would not appear to comport with the Court’s description of due-process recusal as occurring only in “rare instances.”

Second, and in a related vein, although I agree that the Supreme Court likely uses a due-process recusal standard as a starting point or baseline, the due-process recusal standard is incomplete standing alone, and does not “accurately describe[] current Supreme Court practice.” Certainly Justices are aware that they should recuse themselves when a situation rises to a due process level, but arguably some Justices haven’t always recognized that situation (whether due to implicit bias, denial, or mere stubbornness), while others have recused themselves in situations that almost certainly did not rise to a due process level (as, for example, Justice Thurgood Marshall’s seventeen-year practice of recusing himself from all cases involving the NAACP or the Legal Defense and Education Fund). In addition, it must be remembered that it is highly unusual for a Justice to issue an explanatory memorandum addressing his or her recusal decision; the Justices’ general practice is, and historically [*105] has been, to recuse (or to deny a motion to recuse) without providing any explanation, thus leaving Court-watchers to guess the reason for a particular Justice’s non-participation. The traditional absence of any proffered explanation leaves only atypical, unusual situations in which a Justice has felt compelled to issue an explanatory memorandum. Moreover, the most prominent recusal memoranda—those in LAIRD v. TATUM, MICROSOFT CORPORATION v. UNITED STATES, and CHENEY v. UNITED STATES DISTRICT COURT—were not explaining the reasons behind a Justice’s decision to recuse; to the contrary, those memoranda were attempting to justify the Justice’s decision to participate in the case. Accordingly, we simply lack the information necessary to characterize due-process recusal as being an accurate description of the Court’s recusal practices.

Third, I am unpersuaded that simply defining Supreme Court recusal as a matter of constitutional law provides either transparency or public understanding as the book suggests at page 163. Given that first-year law students often have great difficulty in understanding the meaning of “due process,” it is unlikely that the general public would find a due-process standard illuminating.

Professor Virelli has written a genuinely engaging book that is a valuable contribution to the scholarly literature addressing judicial recusal, particularly in its detailed summary of recusal’s history and in its analysis of separation of powers concerns in the specific context of Supreme Court recusal. The book is an absolute must-read for recusal scholars. The book’s inability to offer a complete and unassailable Supreme Court recusal framework is neither a shortcoming nor a criticism of the author, but rather, merely reflects a combination of the intrinsic difficulty of the topic and the reality that we lack information regarding the reason for recusal for almost every instance in which a Justice exercised that option. I commend Professor Virelli for his excellent work, and I highly recommend the book.



LAIRD v. TATUM, 408 U.S. 1 (1972).


© Copyright 2016 by author, Debra Lyn Bassett