As Tony Mauro reports in The National Law Journal, the lack of transparency in Supreme Court recusals - decisions by the justices not to participate in some cases - continues to attract public attention as the justices delve into high-profile cases. The New York City Bar Association issued a report this month calling for the justices to publicly disclose explanations for their recusal decisions, including decisions both to participate and to recuse. As the report explains:
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.Currently, the justices’ decision to recuse or participate in a given case truly is a “black box.” Each justice is the sole decider of whether or not to recuse, and there is no requirement that he or she explain this determination. Furthermore, the justices are not bound by the same Code of Conduct that applies to every other federal judge. The result is a process that lacks accountability and transparency for the nine most powerful jurists in America.
As the New York City Bar Association report notes, transparent and public recusal decisions would “achieve the dual purpose of informing the public of the justice's reasoning and forcing the justice to examine his or her biases.” Additionally, in an era in which the Court is increasingly viewed as a political institution by a skeptical public, “[w]hile there may be some negative public reaction to certain disclosures, on the whole additional transparency should improve the public's perception of the court."
Read more about AFJ’s advocacy for judicial ethics reform, and watch our 2011 film A Question of Integrity to learn about the importance of an accountable, ethical, and transparent Supreme Court.