Judicial ReEngineering

ecognized 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. Generally, each judge is the arbiter of a motion for the judge's
recusal, which is addressed to the judge's conscience and discretion. 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".
Supreme Court Cases
In the Supreme Court of the United States, the Justices typically recuse themselves from
participating in cases in which they have financial interests. For example, Justice Sandra Day
O'Connor generally did not participate in cases involving telecommunications firms because she
owned stock in these firms, and Justice Stephen Breyer has disqualified himself in some cases
involving insurance companies because of his participation in a Lloyd's of London syndicate.
Justices also have declined to participate in cases in which close relatives, such as their children,
are lawyers for one of the parties. On occasion, recusal occurs under more unusual
circumstances; for example, in two cases, Chief Justice William H. Rehnquist stepped down
from the bench when cases were argued by Arizona attorney James Brosnahan, who had testified
against Rehnquist at his confirmation hearing in 1986. Whatever the reason for recusal, the
United States Reports will record that the named justice "took no part in the consideration or
decision of this case."
Historically, standards for recusal in the Supreme Court and lower courts were less rigorous than
they have become in more recent years. In the 1803 case of Marbury v. Madison, Chief Justice
John Marshall participated in the decision and authored the opinion of the Court even though
Marshall's actions as Secretary of State two years prior could be seen as the subject of the
proceeding. On the other hand, Marshall did recuse himself in both the 1813 and 1816 hearings
of Martin v. Hunter's Lessee, despite its equally significant constitutional implications, as he and
his brother had contracted with Martin to buy the land in dispute. Moreover, during the 19th
century, the U.S. federal court system was structured so that an appeal from a judge's decision
was often heard by an appellate panel containing the same judge, who was expected to sit in
impartial review of his own earlier ruling. This situation is no longer permissible, and 28 U.S.C.
Sec. 47 provides that "No judge shall hear or determine an appeal from the decision of a case or
issue tried by him."
Page 97 of 115