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It is a basic precept that no one should be a judge in his or her own case. Yet this is exactly what Supreme Court justices are allowed to do when a party claims they must step aside from a case. Despite the fact that the current recusal law applies to all federal judges, including Supreme Court justices, Supreme Court justices get the final word when deciding whether they must recuse. A federal law, 28 U.S.C. § 455, requires all federal judges, including Supreme Court to recuse themselves from any case in which their impartiality “may be reasonably be questioned.” The statute also sets forth a number of specific circumstances when a judge must recuse, such as when the judge has a financial interest in any party or subject matter of the case.
By tradition, Supreme Court justices are allowed to rule on the merits of recusal motions brought against them. And unlike other federal judges, when a Supreme Court justice denies a motion to recuse, there is no possibility of further review and the Supreme Court justice gets the final word on his or her right to sit. They are not even required to issue a written decision explaining their decision.
Continuing to allow Supreme Court justices to self-review their own recusal motions, with no possibility of review, erodes public confidence in the integrity of the Court and the sense that justice is being administered fairly. In several cases, allowing the justice who is allegedly biased to have the final say on whether or not they must recuse has already threatened to undermine the Court’s integrity.