Roberts’ recusal policy
on Sep 30, 2005 at 4:54 pm
Chief Justice John G. Roberts, Jr., in his first formal action on his first day on the job, on Friday adopted the policy followed for years by most of his new colleagues on when he would take himself out of pending cases — in other words, his recusal policy. The Supreme Court noted in a statement that he had adopted a declaration that seven members of the Court had made nearly 12 years ago on the subject.
The policy deals with recusal when a Justice has a spouse, children or other near-relative who are or may become practicing attorneys. The new Chief Justice’s wife, Jane Sullivan Roberts, is a partner at the Washington offices of Pillsbury Winthrop Shaw and Pittman. It may be a little too early to anticipate whether either of his two young children would someday become lawyers, but that issue could arise at some point during his service.
The recusal policy specifies that, if a covered relative is an associate in a law firm involved in a case before the Court, but has not taken part in it at the Court or previously, the Justice will be free to participate.
The policy deals separately with situations when a lawyer in the family has taken part in a case at an earlier stage, or is a partner in a firm appearing before the Court. If the family members falls into either of those two categories, recusal would occur if the Justice knows the relative that has “an interest that could be substantially affected by the outcome” of the case, or when a Justice’s “impartiality might reasonably be questioned.”
In other words, mere status as a partner, or as an attorney previously involved, does not dictate automatic recusal. But the policy goes on to outline special situations that would result in recusal when a relative was in either of those broad categories, which are found in the federal recusal law, 28 U.S.C. 455.
It specifies that if the relative is a partner in a firm appearing before the Court, the Justice would recuse in any case involving that firm “unless we have received from the firm written assurance that income from Supreme Court litiation is, on a permanent basis, excluded from our relatives’ partnership shares.”
In addition, it provides that if the relative was the lead counsel in a case at an earlier stage, recusal would occur, on the theory that the outcome of the case even at a later stage “might reasonably be thought capable of substantially enhancing or damaging his or her professional reputation.”
Two of the present Justices have not adopted that policy statement: Justice David H. Souter, who was on the Court in 1993 when the policy was written but who had no relatives covered by its terms, and Justice Stephen G. Breyer, not then on the Court but also currently without any relatives covered by it.
Chief Justice Roberts had told the Senate Judiciary Committee that he would recuse himself from any case on which he had participated as a judge on the D.C. Circuit. He has not said publicly what policy he would follow with regard to cases in which he or his family may have financial investments, but most Justices have remained out of such cases.
