By: Madeline Wahlgren

Published: May 23, 2025

Over the course of history, Supreme Court justices have had great liberty in choosing when to recuse themselves from hearing a case before the Court.[1]  Many justices have faced public criticism for their failure to recuse themselves from certain cases.[2]  On the United States Supreme Court, recusal occurs when a justice removes themselves from hearing a certain case based on a conflict of interest the justice believes prevents them from participating impartially in the matter.[3]  Recusals not only help protect litigants from bias, but also ensure the integrity and legitimacy of the Court.[4]  The Supreme Court Code of Conduct for Justices sets forth guidelines for when a justice should recuse themselves and outlines reasons for recusal—ranging from involvement at the lower court level to previous work, family connections, and financial ties.[5]  While the recusal guidelines may seem comprehensive and straightforward, individual justices—rather than the Court—police their own recusal, meaning there is virtually no oversight regarding whether a justice is appropriately recusing themselves.[6]

Currently, the application of the Code of Conduct for recusals is inconsistent and thus diminishes public trust in the Court.[7]  For example, justices have historically recused themselves from cases due to a family connection to the case, a reason for recusal noted in the Code of Conduct.[8]  In 2016, Justice Alito recused himself from the decision of whether to grant certiorari in Mylan Pharmaceuticals v. Acorda Therapeutics due to his sister being a partner at K&L Gates, a firm that does lobbying work for Mylan Pharmaceuticals.[9]  Justice Alito also recused himself from Doe v. Backpage.com, LLC because his son worked on the Senate Judiciary Committee investigating Backpage.com at the time.[10]  To the contrary, however, Justices Thomas and Alito recently failed to recuse themselves from hearing Trump v. United States after reports of their wives’ heavy involvement with President Trump and the “stop the steal” movement.[11]  Justices Thomas and Alito’s failure to recuse themselves from Trump after this information surfaced caused a media frenzy that questioned the legitimacy and integrity of the Court.[12]  Although these instances differ in terms of professional versus personal affiliations of the family members of the Justices, they illustrate the inconsistent application of the Code of Conduct and demonstrate the need for a change in the recusal guidelines to protect the integrity and public perception of the Court.[13]

Illinois Senator and Democratic Chairman of the Senate Judiciary Committee, Dick Durbin, stated that “the Chief Justice can end this spiraling decline in America’s confidence in our highest Court by taking decisive action to establish a credible code of conduct.”[14]  In fact, the Supreme Court only issued a “formal” ethics code in 2023.[15]  Previously, the Court had an “equivalent” of ethics rules “derived from a variety of sources.”[16]  While the acknowledgement and implementation of the Code of Conduct is an important first step, the self-policing issue remains because the justices are the only ones determining if they are in compliance with the code.[17]  There must be a method of enforcing compliance with the Code of Conduct in order to make it “credible” and help rebuild public trust in the Court.

There are legitimate concerns behind a method of required recusal and an outside third party policing the recusals of justices on the Supreme Court, such as parties filing cases in particular ways to ensure recusal from certain justices in hopes of reaching a desired outcome without them on the bench.[18]  There, however, must be more accountability for the justices.  One solution is to have the justices police each other’s recusal.  In this scenario, the justices would discuss possible conflicts of interest among the nine in a private setting and vote on whether a justice with a possible conflict should be recused from hearing a case.  This vote would allow for additional monitoring and accountability for the justices in terms of what truly makes a justice impartial.

Given that all nine justices are supposed to be neutral third parties, regardless of who they are appointed by, their political views, or if they tend to lean liberal or conservative in their rulings, this solution will enable a neutral and confidential review of conflicts and present an objective and hopefully consistent result in applying the Code of Conduct with regard to recusals.  This solution will also remove the call for “required” recusals, preventing litigants from knowing whether a certain justice would hear the case before it is filed, and remove the need for an outside third party.[19]  Effectively, this solution would not require the justices to deviate too far from the self-enforcement and self-policing that is already occurring, but it would add a second layer of internal review and ethical pressure from peers on the bench that will ideally result in a more effective, consistent, and ethical application of the Code of Conduct for recusals.  While this is easier said than done logistically, implementing mandatory peer ethical monitoring among the justices for recusals would help to restore public confidence in the Court and prevent justices on the Court from ignoring or inconsistently applying the Code of Conduct.

Whether a Supreme Court justice chooses to recuse themselves from hearing a case has an impact not only on the case itself, but also on the public’s perception and confidence in the Court.[20]  As it currently stands, Supreme Court justices have full and unmonitored discretion regarding whether they choose to recuse themselves from any given matter before the Court.[21]  While it will be a long road to restoring public confidence in the work of the Court, one step in the right direction is to create an internal ethics review for recusals among the nine justices.  This justice-to-justice peer pressure to recuse according to the terms of the Code of Conduct will prevent justices from ignoring the code and give the public a sense of ease that there are at least some checks on each individual justice.  Public confidence in the United States Supreme Court is essential to democracy, and steps must be taken toward ethical changes at the Court to preserve democracy in the United States.[22]

[1] Letter from C.J. John G. Roberts, Jr., U.S. Sup. Ct., to Hon. Richard J. Durbin, Chair, S. Comm. on the Judiciary (Apr. 25, 2023) (on file at https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20Chairman%20Durbin%2004.25.2023.pdf).

[2] See generally Adam Liptak, Justices Thomas and Alito Ignored Calls for Recusal in Jan. 6 Case, N.Y. Times (June 28, 2024), https://www.nytimes.com/2024/06/28/us/politics/justices-thomas-and-alito-recuse.html.

[3] See Louis J. Virelli III, Supreme Court Recusal, Am. Const. Soc’y (Oct. 28, 2020), https://www.acslaw.org/expertforum/supreme-court-recusal/.

[4] See id. (noting the two purposes for recusal are protecting “individual litigants from bias judges” and protecting the “integrity of the judiciary”).

[5] See Code of Conduct for Justices, Sup. Ct. of the U.S. (2023), https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf.

[6] Letter from C.J. John G. Roberts, supra note 1.

[7] See generally Liptak, supra note 2; Jamie Raskin, Jamie Raskin: How to Force Justices Alito and Thomas to Recuse Themselves in the Jan. 6 Cases, N.Y. Times (May 29, 2024), https://www.nytimes.com/2024/05/29/opinion/alito-thomas-recuse-trump-jan-6.html.

[8] See Debra Cassens Weiss, Supreme Court justices recused themselves 180 times in most recent term, A.B.A. J. (July 12, 2016, 8:30 AM), https://www.abajournal.com/news/article/supreme_court_justices_recused_themselves_180_times_in_most_recent_term; Code of Conduct for Justices, supra note 5.

[9] See Gabe Roth, Explaining the Unexplained Recusals at the Supreme Court 5 (2017).

[10] See id. (explaining recusals caused by family ties).

[11] See Raskin, supra note 7 (discussing the actions of Ginni Thomas and Martha-Ann Alito).

[12] See id. (generally noting the public perception of the Court following Justices Thomas and Alito’s failure to recuse in Trump).

[13] See id.

[14] John Fritze, Alito tells lawmakers he will not recuse from Supreme Court cases despite flag controversy, CNN Pol. (May 29, 2024, 11:15 PM), https://www.cnn.com/2024/05/29/politics/alito-flag-controversy-response-supreme-court/index.html.

[15] Abbie VanSickle & Adam Liptak, Supreme Court Adopts Ethics Code After Reports of Undisclosed Gifts and Travel, N.Y. Times (Nov. 13, 2023), https://www.nytimes.com/2023/11/13/us/politics/supreme-court-ethics-code.html.

[16] Code of Conduct for Justices, supra note 5 (“The Court has long had the equivalent of common law ethics rules, that is, a body of rules derived from a variety of sources, including statutory provisions, the code that applies to other members of the federal judiciary, ethics advisory opinions issued by the Judicial Conference Committee on Codes of Conduct, and historic practice.”)

[17] See VanSickle & Liptak, supra note 15. (“Left unclear was how the rules would be enforced, and the court said that it was still studying how any code would be put into effect.”).

[18] See Letter from C.J. John G. Roberts, Jr., supra note 1 at 2.

[19] See generally VanSickle & Liptak, supra note 15.

[20] See Nik Popli, Breaking Down the Supreme Court’s Ethics Rules as Justices Come Under Fire, TIME (May 30, 2024, 10:24 AM), https://time.com/6983758/supreme-court-ethics-rules-enforced/.

[21] See id.

[22] See Raskin, supra note 7.