Presidential Commission on the Supreme Court of the United States
- ↑ This data was compiled with the help of Fix the Court’s regular reports on Supreme Court recusal. See, e.g., The Supreme Court's Unexplained OT17 Cert.-Stage Recusals Explained, Fix the Court, https://fixthecourt.com/wp-content/uploads/2018/05/OT17-cert.-stage-recusals-chart.pdf (last accessed Sept. 18, 2021).
- ↑ Even some who are skeptical of congressional regulation of the Court’s recusal practices have argued that requiring statements explaining recusal decisions would be a permissible procedural reform. See Virelli, supra note 137, at 1591–92.
- ↑ In a 2015 appropriations hearing, Justice Kennedy voiced a concern that presenting reasons for recusal might resemble lobbying. Justice Kennedy said: “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. So, in my view, the reason for recusal should never be discussed.” Rich Gardella, Why Don’t Supreme Court Justices Have an Ethics Code, NBC News (Apr. 11, 2017, 2:26 PM) (quoting Justice Kennedy), https://www.nbcnews.com/news/us-news/why-don-t-supreme-court-justices-have-ethics-code-n745236.
- ↑ Under 28 U.S.C. § 455, all federal judges decide certain recusal motions in the first instance. However, for lower court judges, the decision not to recuse may be appealed. Under 28 U.S.C. § 144, an affidavit alleging personal bias or prejudice by a United States District Judge must be heard by another judge if the affidavit is timely and sufficient.
- ↑ Sup. Ct. R. 22(4).
- ↑ Justice Black and Justice Jackson feuded over Black’s refusal to recuse himself in a case where the plaintiff’s counsel was Black’s former law partner and personal lawyer. Jackson wrote a concurrence to an order denying rehearing of the case that has been interpreted as critical of Black. See Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers of America, 325 U.S. 897 (1945) (Jackson, J., concurring); see also Dennis J. Hutchinson, The Black–Jackson Feud, 1988 Sup. Ct. Rev. 203 (covering the Black–Jackson feud in detail).
- ↑ See Russell Wheeler & Malia Reddick, Judicial Recusal Procedures: A Report on the IAALS Convening 19–21 (2017) (listing state statutes and codes that allow or require a judge’s recusal decision to be referred to another judge or the entire court, including some statutes and codes that create such a referral process for the state’s highest court).
- ↑ James M. Anderson, Eric Helland & Merritt McAlister, Measuring How Stock Ownership Affects Which Judges and Justices Hear Cases, 103 Geo. L.J. 1163, 1178 (2015).
- ↑ See 26 U.S.C. § 1043.
- ↑ For example, the divestment statute only allows for divestiture when doing so is “reasonably necessary” to avoid a conflict. 26 U.S.C. § 1043(b)(2). Perhaps the Justices interpret this language as not permitting preemptive divestments to avoid conflicts.
- ↑ See Anderson, Helland & McAlister, supra note 158, at 1207–08 (proposing divestment requirements for judges or Justices).
- ↑ See, e.g., Anderson, Helland & McAlister, supra note 158 at 1207–08 (suggesting that Congress should require divestment of stock ownership as a condition for confirmation, or require divestment when conflicts arise); Adam Liptak, The Hazards Justices Face by Owning Individual Stocks, N.Y. Times (Jan. 9, 2017), https://www.nytimes.com/2017/01/09/us/politics/the-hazards-justices-face-by-owning-individual-stocks.html; Richard W. Painter, Stocks owned by Supreme Court justices tilt the scales of justice, MSNBC (Oct. 6, 2021, 1:39 PM), https://www.msnbc.com/opinion/stocks-owned-supreme-court-justices-tilt-scales-justice-n1280712.
- ↑ From our review, the Second, Third, Seventh, and Ninth Circuits have all allowed video recording of at least some oral arguments in the past few years. The Ninth Circuit has been especially prolific in this regard; it posts video recordings of most, if not all, of its oral arguments. See Audio and Video, U.S. Court of Appeals for the Ninth Circuit, https://www.ca9.uscourts.gov/media/ (last accessed Oct. 31, 2021). According to a 2019 report by the Congressional Research Service, all 50 state supreme courts allow video recording of proceedings “under certain conditions.” Congressional Research Service, Video Broadcasting from the Federal
242 | December 2021
