Skip Navigation

Judicial Recusal Reform: Toward Independent Consideration of Disqualification

This report exam­ines an import­ant but under­scru­tin­ized chal­lenge for fair and impar­tial courts: the proced­ural rules govern­ing judi­cial disqual­i­fic­a­tion. 


This report exam­ines an import­ant but under­scru­tin­ized chal­lenge for fair and impar­tial courts. The proced­ural rules govern­ing judi­cial disqual­i­fic­a­tion in many state court systems fail to provide for mean­ing­ful inde­pend­ent consid­er­a­tion of recusal decisions by judges. While it is widely recog­nized that “no man should be a judge in his own case,” this stand­ard often is not applied to judi­cial disqual­i­fic­a­tion.

In some 35 states, state supreme court justices decide their own recusal motions with no oppor­tun­ity for review short of the U.S. Supreme Court, which hears very few cases. In the major­ity of states, trial judges whose impar­ti­al­ity is chal­lenged are permit­ted to rule on the motion them­selves. On appeal, the review can be inap­pro­pri­ately defer­en­tial. Reform is required to bolster public confid­ence in judi­cial integ­rity and ensure that all litig­ants receive unbiased resol­u­tion of their cases.

Motions call­ing for a judge to step down in a partic­u­lar case effect­ively place the judge and the valid­ity of the judi­cial process on trial. Absent search­ing inde­pend­ent consid­er­a­tion, chal­lenged judges them­selves determ­ine whether there are adequate grounds to ques­tion their own impar­ti­al­ity — a task for which, research and common-sense suggest, they are wholly unsuited. For a judge to ignore that simple truth would, as James Madison wrote more than 200 years ago in the Feder­al­ist Papers, “bias his judg­ment, and not improb­ably, corrupt his integ­rity.” That wisdom holds today.

Over the past twenty years, the Bren­nan Center has docu­mented a vari­ety of threats to fair and impar­tial courts. This new analysis is occa­sioned in part by the Supreme Court’s June 2016 ruling in Willi­ams v. Pennsylvania, the second major opin­ion on an import­ant recusal ques­tion by the nation’s highest court in just a few years. Like the Court’s 2009 ruling, in Caper­ton v. Massey, the 5–3 Willi­ams decision declared that the Due Process Clause of the Four­teenth Amend­ment requires a judge to step aside when the circum­stances of a case present a “seri­ous risk of actual bias.”

In Willi­ams the conflict of interest stemmed from an appel­late judge’s parti­cip­a­tion in a case he over­saw in his prior job as district attor­ney. In Caper­ton, the conflict arose from massive campaign spend­ing by a corpor­ate litigant’s CEO in support of one of the judges hear­ing his company’s case. Caper­ton valu­ably high­lighted the import­ance of recusal as a tool to protect judi­cial impar­ti­al­ity in the current judi­cial elec­tion envir­on­ment, marked by massive amounts of spend­ing (often through inde­pend­ent expendit­ures paid for by lawyers, frequent litig­ants, and groups with interests in the outcome of judi­cial decisions) and an escal­a­tion in inflam­mat­ory attack ads.

In both Willi­ams and Caper­ton, notably, the Court did not address the inher­ent proced­ural conflict of allow­ing judges facing a recusal motion to be its sole decider — our prime focus here. In these opin­ions, both writ­ten by Justice Anthony Kennedy, the Court estab­lished a due process floor below which the risk of actual bias becomes consti­tu­tion­ally intol­er­able. The Court did not grapple with whether a cred­ible and impar­tial mech­an­ism to resolve recusal disputes is also an essen­tial element of due process. Although the Court made clear that states are free to adopt rules provid­ing more protec­tion against real or appar­ent bias than is consti­tu­tion­ally required, and many have, too few states have moved to mandate consid­er­a­tion of recusal motions by a neut­ral, unin­volved judge.

But regard­less of where states set their stand­ard for recusal — whether at the consti­tu­tional floor (a “seri­ous risk of actual bias”) or the more protect­ive stand­ard adop­ted by almost every state mandat­ing recusal in “any proceed­ing in which the judge’s impar­ti­al­ity might reas­on­ably be ques­tioned” — it is crit­ical that the determ­in­a­tion of whether a judge is and appears to impar­tial not be left to the chal­lenged judge. So the Bren­nan Center argued in an amicus brief submit­ted in the Willi­ams case.

To begin our exam­in­a­tion, this report reviews the crucial role of judi­cial recusal as a mech­an­ism for safe­guard­ing the real­ity and percep­tion of judi­cial integ­rity. It then considers the risks of allow­ing judges to determ­ine their own impar­ti­al­ity. Finally, the report offers a frame­work for strength­en­ing inde­pend­ent review of recusal motions without unduly burden­ing already-scarce judi­cial resources, and exam­ines the extent to which current state proced­ural rules provide — or fail to provide — mean­ing­ful inde­pend­ent review of recusal motions, thereby fulfilling the prom­ise of due process.The egre­gious facts in both Caper­ton and Willi­ams made it plain to the public, legal experts, and a major­ity of the U.S. Supreme Court that the impar­ti­al­ity of the chal­lenged state court justices was very much in doubt. Some­how, though, it was not obvi­ous to the judges them­selves, both of whom publicly protested that they harbored no bias what­so­ever. In the Willi­ams opin­ion, Justice Kennedy seemed to refer to this ethical blind spot, observing that “[b]ias is easy to attrib­ute to others and diffi­cult to discern in oneself. Justice Kennedy did not elab­or­ate on that obser­va­tion, which suggests, at least, the logical next step of fore­clos­ing states from grant­ing a chal­lenged judge the final word on whether his impar­ti­al­ity may reas­on­ably be ques­tioned.

These propos­als will not answer every ques­tion, or address each poten­tial scen­ario that may arise in differ­ent states using varied approaches for hand­ling recusal motions. But indi­vidu­ally and together, these simple prin­ciples can guide states in bolster­ing the integ­rity of the court system and public trust. Our proposed approach, detailed begin­ning on page 6, has five parts:

  1. In the first instance, assign recusal motions to a judge who is not the subject of the motion.
  2. Require judges to commit recusal decisions in writ­ing, allow­ing for adequate review on appeal.
  3. Provide for de novo review of deni­als of recusal motions, partic­u­larly when the chal­lenged judge decided the initial motion.
  4. Estab­lish a clear, prac­tical mech­an­ism within the judi­cial system for repla­cing disqual­i­fied justices on state courts of last resort.
  5. Allow one pree­mp­tory strike of an assigned judge at the trial level.

Judi­cial Recusal Reform: Toward Inde­pend­ent Consid­er­a­tion of Disqual­i­fic­a­tion