Recusal is the legal process by which a judge, juror, or other adjudicator steps aside from participating in a case due to potential bias, conflict of interest, or appearance of impropriety. This practice is fundamental to ensuring fairness and impartiality in legal proceedings, preserving the integrity of the judiciary, and maintaining public confidence in the legal system. Historical and modern legal frameworks outline specific grounds for recusal, such as personal or financial conflicts of interest, prior involvement in a case, or demonstrated bias. Applicable statutes or canons of ethics may provide standards for recusal in a given proceeding or matter. Providing that the judge or decision-maker must be free from disabling conflicts of interest makes the fairness of the proceedings less likely to be questioned, and more likely that there is due process.
Recusal laws and guidelines are established in various legal systems worldwide, including the United States, where they are regarded as cornerstones of judicial impartiality. In the United States Supreme Court and lower courts, however, there is no procedure for enforcing their respective recusal codes.
Some recusal systems have been critiqued as not being robust or sufficiently transparent, prompting calls for reform. Proposed changes include mandatory disclosure of campaign expenditures by litigants and stricter recusal standards for those benefiting from interested parties. Letting an individual determine whether or not they have a conflict of interest, can in and of itself be considered a conflict-of-interest.
Some scholars also find that recusal proceedings, especially insofar as they occur in analyzing campaign financing conflict of interest between judge and litigants, are not as effective a safeguard as they purport to be in the way that the change in judge taints “impartiality and legitimacy nonetheless.”
Terminology
The term "recuse" originates from the Latin word "recusare", meaning "to demur", or "object" reflecting the fundamental principle of rejecting participation when impartiality is in doubt.
Judicial disqualification is sometimes used interchangeably with recusal, but has also been seen as distinct from recusal in certain jurisdictions where a disqualification can lead to a case being thrown out after the fact if a judge had a conflict of interest in a case where they did not recuse themselves.
History
Judicial disqualification laws existed in Roman law and early Jewish law, which disqualified judges from serving on cases of family, friends or enemies. These threats to impartiality can take many forms, including, but not limited to, those that are listed below.
Conflict of interest
A conflict of interest occurs when an individual's duties and responsibilities are in opposition to their personal or financial interests. For example, US Department of Interior employees should recuse themselves if their decisions could have a direct and predictable effect on their financial interests or those of their family members or close associates. However, even in cases where the conflict does not mandate recusal under the Code of Ethics, public officials might still choose to recuse themselves voluntarily to avoid any appearance of bias or impropriety. This also applies to cases when Federal Judges have close personal or professional relationships with attorneys or other parties involved in the case.
The presence of financial interests that could be affected by the outcome of a case is another critical reason for recusal. For U.S. federal judges, this includes any ownership of legal or equitable interests, no matter how small, or relationships such as director or adviser in the affairs of a party. The Due Process clauses of the United States Constitution, for example, explicitly require judges to recuse themselves from cases where they have a financial interest in the outcome.
Bias or prejudice
Personal bias or prejudice concerning a party or the lawyer of that party is a significant ground for recusal in the United States. The Due Process clauses of the United States Constitution explicitly require judges to recuse themselves from cases where there is a strong possibility the decision would be biased. Some Judges and officials are advised to recuse themselves from cases where they have engaged in policy advocacy or public comments that could affect their impartiality. In Rhode Island, public officials who recuse themselves from certain matters may still engage in public comment under specific conditions, such as the "Public Forum Exception". However, this exception is limited and does not allow officials to represent others or act as expert witnesses in forums restricted to the general public.
Political causes
In some cases, litigants have called for a judge’s recusal due to their racial identity on the grounds that their race gives them inherent bias in judicial decision-making. Judge Higginbotham refused to recuse himself, citing that “determinations of judicial bias must begin by first assuming that all judges have a race, a gender, and a professional background,” and therefore it would be unjust to disqualify a justice for their race and personal perspectives given that everyone has both.
This issue of recusal on the basis of race has continued into the 21st century courts. In State v. Robinson, the first North Carolina death penalty case reviewed for prejudice under the Racial Justice Act, the state prosecutors called for presiding Judge Gregory Weeks’ recusal. In keeping with Sumner’s decision, Judge Weeks stayed on as the judge in the case’s court proceedings. Per the Model Code of Judicial Conduct, judges are expected to check their own conflict of interest in cases where they might enact their religious bias. Like in the case of racial diversity on the bench, some counter this argument for the need to recuse oneself on the basis of religious conviction by claiming that religion can be a “useful background and focusing tool” that should have its own place in judicial decision-making.
Recusal in the United States
Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge", provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned". The section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinions concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding.
28 U.S.C. Section 144, captioned "Bias or prejudice of judge", provides that under circumstances, when a party to a case in a United States District Court files a "timely and sufficient motion that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party", the case shall be transferred to another judge.
The general rule is that, to warrant recusal, a judge's expression of an opinion about the merits of a case, or his familiarity with the facts or the parties, must have originated in a source outside the case itself. This is referred to in the United States as the "extra-judicial source rule" and was recognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in Liteky v. United States.
At times justices or judges will recuse themselves sua sponte (on their own motion), recognizing that facts leading to their disqualification are present. However, where such facts exist, a party to the case may suggest recusal. Controversially, each judge generally decides whether or not to recuse themself. However, where lower courts are concerned, an erroneous refusal to recuse in a clear case can be reviewed on appeal or, under extreme circumstances, by a petition for a writ of prohibition.
In certain special situations, circumstances that would otherwise call for recusal of a judge or group of judges may be disregarded, when otherwise no judge would be available to hear the case. For example, if a case concerns a salary increase payable to a judge, that judge would ordinarily be disqualified from hearing the case. However, if the pay increase is applicable to all of the judges in the court system, the judge will keep the case, because the grounds for recusal would be equally applicable to any other judge. The principle that a judge will not be disqualified when the effect would be that no judge could hear the case is sometimes referred to as the "rule of necessity".
Recusal is largely a self-policed process in the United States judiciary. Any judge or Justice who has perceived bias or conflict of interest in a case is obligated to recuse themselves on the basis of the Due Process clause of the 14th Amendment, Section 1. The Model Code of Judicial Conduct reinforces this responsibility: “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances.” In accordance with the Code, Judges must therefore consider their ability to remain impartial and recuse themselves in the face of a conflict of interest.
Per the Code of Conduct for United States Judges, “a Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.” The consequence of exhibiting actual or perceived impropriety is erosion of public trust in the judiciary and a threat to institutional legitimacy. Recusal proceedings are intended to safeguard public trust in the courts and in the rule of law. Some argue, however, that recusal is not necessarily the premier assurance of trust in court proceedings and their outcome, saying that even a successful recusal and change to a presiding judge can taint the public’s trust in the court proceedings due to perceptions of fairness. In 2004, Justice Antonin Scalia wrote an opinion declining to recuse himself in a case to which Vice President Dick Cheney was a party in his official capacity, despite the contention of several environmental groups that Scalia's participation created an appearance of impropriety because Scalia had recently participated in a widely publicized hunting trip with the Vice President. The same year, however, Scalia recused himself without explanation in Elk Grove Unified School District v. Newdow, a First Amendment case challenging inclusion of the words "under God" in the Pledge of Allegiance, after giving a public speech in which Scalia stated his view that Newdow's claims were meritless.
In 2024, Justices Alito and Thomas refused calls to recuse themselves from January 6th cases where their spouses have taken public stances or been involved in efforts to overturn the election.
In March 2025, five of the nine Supreme Court justices recused themselves in the case of Baker vs. Coates. Four of the five (Sotomayor, Barett, Gorsuch, and Brown Jackson) had been previously published by Penguin Random House, owned by Bertelsmann SE & Co. KGaA, one of the defendants. These four justices’ previous involvement with the publishing company could have given them financial incentive in their ruling on the case, and therefore presented a conflict of interest in their presiding over it. Alito had no previous partnership with Bertelsmann SE & Co. KGaA; the grounds for his recusal remain unclear.
Federal cases
On September 28, 2021, the Wall Street Journals investigative team found that 131 judges did not recuse themselves in cases where they had a financial interest through ownership of stocks in the relevant parties. Two-thirds of such cases ended with a verdict favorable to the party in which the judge owned stock. Explanations given for the lack of recusal included: unknown ownership via brokers investing on behalf of the judge, being unaware of the laws regarding disclosure and recusal, spelling errors and ownership of subsidiaries (e.g. Exxon Corp. vs Exxon Oil, which is a subsidiary), ownership of stocks held not by the judge but by close family members (spouses, children, etc.), and insistence that stock ownership did not influence their decisions (especially if the outcome did not change stock price). All of these explanations have still been considered a violation of federal law by some experts.
A significant dispute over recusal occurred in 1946 when Justice Hugo Black participated in the Jewell Ridge Coal case despite a conflict involving his former law partner. This case highlighted the ongoing challenges in maintaining impartiality and the evolving nature of recusal practices. Throughout much of its history, the U.S. Supreme Court relied on the justices' discretion and common-law principles to decide recusal matters. In 1974, federal judge Leon Higginbotham issued his decision in Comm. of Pa. v. Local 542, Int'l Union of Operating Engineers, explaining why he as an African American judge with a history of active involvement in the civil rights struggle was not obligated to recuse himself from presiding over litigation concerning claims of racial discrimination. He held, in an opinion that was followed by later judges, including a series of black judges who faced recusal requests, that a judge should not be forced to recuse solely because of their membership in a minority group. Jewish federal Judge Paul Borman relied on the Higginbotham opinion in part in his 2014 decision not to recuse himself from the trial of Palestinian-American Rasmea Odeh. In doing so, the process assumes that judges can accurately discern their own bias and that they will reliably disqualify themselves because of it. This measure would confront the issue of “self-recusal” and “subject the Court to essentially the same pressures as the lower federal courts’ judges.” On March 2, 2017, Jeff Sessions, Attorney General of the U.S., recused himself while the department investigated Russian interference in the 2016 election due to concerns over his impartiality as a member of the Trump campaign team.
In Rhode Island, best practices suggest that an official should leave the room during discussions of the matter they are recused from, especially in executive sessions where the presence of the recused individual could be inappropriate. As of 2024, the Department of the Interior suggested that documenting recusal decisions in writing can be useful to clarify the scope and ensure transparency.
Applicable to most countries
Laws or court rules provide the recusal of judges. Although the details vary, the following are nearly universal grounds for recusal.
- The judge is related to a party, attorney, or spouse of either party (usually) within three degrees of kinship.
- The judge is a party.
- The judge is a material witness unless pleading purporting to make the Judge a party is false (determined by presiding judge, but see substitution).
- The judge has previously acted in the case in question as an attorney for a party, or participated in some other capacity.
- The judge prepared any legal instrument (such as a contract or will) whose validity or construction is at issue.
- Appellate judge previously handled case as a trial judge or at a lower appellate level.
- The judge has personal or financial interest in the outcome. This particular ground varies by jurisdiction. Some require recusal if there is any interest at all in the outcome, while others only require recusal if there is interest beyond a certain value.
- The judge determines he or she cannot act impartially.
Waiver and substitution
The recusal rule may be avoided or ignored if all parties and the judge agree, although in practice this rarely occurs. If recusal is avoided in this manner, a full and complete record of the facts that qualify as grounds, above, must be made for the appellate court.
If a judge fails to recuse themselves sua sponte and a party believes the judge has a bias the party may motion for substitution. In some jurisdictions litigants may have the right to substitute a judge, even if no bias is demonstrated.
See also
- Nemo iudex in causa sua
Notes
- Wis. Stat. sec. 757.19(2)
- Wis. SCR 60.04(4)
- State v. Asfoor, 75 Wis.2d 411, 436 (1977).