Lou Virelli is an Associate Professor of Law at Stetson University College of Law.

Much has been said and reported recently about the recusal of Supreme Court Justices.  All manner of commentators, from members of Congress to law professors and the press, have raised concerns about the Justices’ decisions whether to participate in individual cases.  These concerns range from the lack of transparency and accountability in the Justices’ recusal decisions to more substantive questions about the proper legal standard to apply to those decisions.  From this wide range of viewpoints, two persistent and related themes have emerged: Supreme Court recusal is a matter of judicial ethics, and Congress should seek to protect the integrity and legitimacy of the Court by more closely regulating the Justices’ recusal practices.

This perspective, however, largely misses the point.  Treating Supreme Court recusal as solely a question of judicial ethics overlooks the fundamental constitutional questions raised by congressional regulation of the Court’s recusal practices.  My article, Congress, the Constitution and Supreme Court Recusal (published in the Summer 2012 issue of the Washington and Lee Law Review) is the second installment in an ongoing project designed to address that oversight by recasting Supreme Court recusal as a question of constitutional law.

In an earlier article, The (Un)Constitutionality of Supreme Court Recusal Standards (published in the 2011 volume of the Wisconsin Law Review), I introduced Supreme Court recusal as a matter of constitutional law by taking up the fundamental question of “who decides” recusal questions at the Court.  As it currently stands, a federal statute sets the criteria for recusal of all federal judges, including Supreme Court Justices.  But longstanding Court practice, along with constitutional text and history, show that the “judicial Power” vested exclusively in the Court by Article III includes the authority to make recusal decisions.  Constitutional structure, especially provisions such as the Impeachment Clauses of Article I and the Exceptions Clause of Article III, as well as the academic literature on the inherent power of the federal courts, strongly suggest that Congress is constitutionally precluded from interfering (at least substantively) in those decisions.  Taken together, I argue that this evidence supports the conclusion that congressional regulation of Supreme Court recusal is unconstitutional.  The article also makes the normative case for Supreme Court recusal as an exclusively judicial matter, claiming that doing so strengthens the separation of powers and offers benefits for litigants as well as the Court as an institution.

Congress, the Constitution and Supreme Court Recusal represents the next step in the process of reinterpreting Supreme Court recusal as a matter of constitutional law.  It uses separation of powers principles to identify and offer solutions to the systemic constitutional problems surrounding recusal at the Court.

First, repositioning recusal as a matter of constitutional structure reveals the largely overlooked conflict between Congress and the Court over recusal.  Congress has attempted to directly regulate recusal – to create statutory recusal standards for the Justices – and has been met with indifference or polite disregard by the Court.  The Court’s response has in turn triggered calls for even stricter congressional regulation of its recusal practices.  The result is an impasse between Congress and the Court that has serious implications for the legitimacy, integrity, and efficacy of both branches.

Once we are able to see and appreciate the inter-branch impasse over recusal, a constitutional perspective allows us to better confront the next two critical questions – how should the conflict be resolved, and who is responsible for resolving it?  Based on my earlier analysis, I maintain that the Constitution commits Supreme Court recusal decisions exclusively to the Justices.  Merely identifying the winner, however, is only half the battle.  In cases involving a direct inter-branch conflict, it is critical to the integrity of our constitutional democracy to consider how and by whom that winner should be named.  The answers, I argue, lie in our constitutional structure and, more specifically, the separation of powers.

As a co-equal branch of government, Congress has the same responsibility to confront constitutional questions as the Court.  I contend that the separation of powers calls upon Congress to resolve its impasse with the Court over recusal by repealing those portions of the federal recusal statute that apply to Supreme Court Justices.  The Court is, by definition, an interested party in the recusal debate.  Any action by the Court to protect its own autonomy over recusal (such as by publicly stating its position in constitutional terms, holding that the question is non-justiciable, or invalidating the statute) could create an appearance of judicial aggrandizement that would threaten the legitimacy of the Court and the inter-branch cooperation and comity that is vital to our tripartite arrangement.  The responsibility thus falls to Congress to resolve the impasse through the only mechanism capable of achieving such a resolution – targeted repeal of the recusal statute.

That is not to say, however, that Congress is left without any constitutional mechanism for checking the Court’s recusal power.  Congress has several indirect approaches at its disposal – such as impeachment, procedural reforms, judicial confirmation, appropriations, and investigations – that are clearly within its constitutional authority and that do not seriously threaten its relations with the coordinate branches.  I argue that these indirect tools strike the proper balance by permitting Congress to influence the Justices’ recusal decisions in ways that will alleviate the tension created by direct congressional regulation of the Court, while still maintaining the appearance of legitimacy and a healthy balance of power between the two branches.  These are just some of the systemic and institutional benefits that accrue from an indirect congressional approach to recusal and that serve as a reminder of the importance of recognizing recusal’s constitutional dimension.

Finally, reevaluating recusal in constitutional terms provides insight into much larger questions about how to settle other inter-branch disputes.  The separation of powers anticipates conflict among the branches, but it most often fails to tell us how those conflicts should be treated or resolved.  Critical questions arise such as each branch’s institutional responsibility in resolving a dispute, whether those responsibilities change when a branch is a party to that dispute or whether they are a function of institutional competency and constitutional authority, and what constitutional mechanisms are best suited to provide resolutions.  The lessons learned from Supreme Court recusal serve as a template for addressing these bigger questions about the boundaries of constitutional power by offering a potentially useful view into the various approaches to be taken and benefits to be sought in cases of inter-branch conflict.

Posted in Featured, Academic Round-up

Recommended Citation: Lou Virelli, Scholarship highlight: Supreme Court recusal and the separation of powers, SCOTUSblog (Feb. 8, 2013, 12:36 PM), https://www.scotusblog.com/2013/02/scholarship-highlight-supreme-court-recusal-and-the-separation-of-powers/