In March, the U.S. Supreme Court is going to hear more than five hours of arguments challenging President Obama’s signature Affordable Health Care Act .  There have been rumblings from the right and the left seeking to force Justices Kagan and Thomas to recuse  (remove) themselves from this case, albeit for entirely different reasons.  In Justice Kagan’s case, the reasons relate to her involvement in some aspects of the case when she was solicitor general.  In Justice Thomas’ case, the reasons involve his wife’s political role with groups who oppose the law. 

When must a judge get off a case?  Generally, under both state and federal codes of conduct, recusal (now usually called disqualification) is required if the judge has a financial stake in the case (which can even mean ownership of a few shares of stock), has expressed an opinion in which the judge has appeared to prejudge the case before it has been heard, or when the judge’s impartiality may reasonably be questioned.  There’s only one problem.  U.S. Supreme Court justices are not bound to follow the code of conduct for federal judges.  That’s not to say they don’t—they do.  But they don’t have to. By contrast, Ohio Supreme Court justices are obligated to follow the Ohio Code of Judicial Conduct.  

If a U.S. Supreme Court justice must get off a case, there can be no substitute.

Here are two examples of recusals at the U.S. Supreme Court level.  The first involves a financial interest in a case. In 2008 Justice Samuel Alito removed himself from the Exxon Valdez oil spill case because he owned stock in the oil company.  This left the remaining justices tied on a very important argument in the case—the responsibility of the company for the actions of the commander of the ship. The justices split 4-4 on this point.   A tie vote means the decision of the lower court stands, which in this case meant the company was responsible for Captain Hazelwood’s conduct, and had to pay billions of dollars (later drastically reduced) because of his conduct.

Justice Scalia, who speaks his mind in public more than most jurists (and in my view more than is good for the Court) had to remove himself from a case challenging the words “under God” in the pledge of allegiance to the flag, because he gave his opinion on the matter at a public meeting before the case was argued. You can read the recusal motion here.  On the other hand, Justice Scalia’s memorandum on why he refused to remove himself from a case in which Vice President Cheney was a party (in his official capacity) after the two (among others) had gone  duck hunting is a classic.

The aspect of high court recusal that has recently come sharply into the spotlight is the fact that the justices decide for themselves whether or not to get off a case, and no one reviews that decision. In his just-released 2011 annual report on the state of the federal judiciary, Chief Justice Robert vigorously defended his colleagues on this. He wrote that he has “complete confidence in the capability of my colleagues to determine when recusal is warranted.”  He also noted that “a justice cannot withdraw from a case as a matter of convenience or simply to avoid controversy.” And he strongly suggested it would be a very bad idea for the other justices to vote on anyone’s recusal. 

Things are a bit different at the Supreme Court of Ohio than they are in Washington.  Like the U.S. Supreme Court, the decision about whether or not to get off a case lies strictly with the individual justice.  But if a justice does decide to get off a case, Chief Justice O’Connor appoints an appellate judge to take that justice’s place, so there will be no tie votes. And since April 2011, an Ohio Supreme Court Justice who is asked by a party to get off a case must publicly file a response—although a justice’s reasons for the decision are not required.