Recusal & the Bounds of Judicial Bias
With incredible powers to make life-changing decisions involving liberty and fortune, judges are expected to make decisions with a threshold level of neutrality. In this conversation, we explore the limits of that threshold. When does judicial bias legally or ethically preclude a judge from hearing a case? Alicia Bannon (director of the Judiciary Project at the Brennan Center for Justice) explains the laws and limits on judicial recusal and where gray areas remain.
Bannon draws on contentious contemporary examples such as cases involving Justice Thomas and his wife’s connection to cases involving January 6th as well as cases relating to former President Trump. Bannon explains that the constitutional test for recusal (under the Due Process protections) is “serious risk of actual bias.” The conversation goes on to explore the limits of that test and potential reforms to improve the integrity of U.S. courts.
Relevant Cases
Williams v. Pennsylvania - Supreme Court of the United States (2016)
Caperton v. Massey - Supreme Court of the United States (2009)
“Serious Risk of Actual Bias” standard
Williams-Yulee v. The Florida Bar – Supreme Court of the United States (2015)
Relevant Rules and Laws
Rule 2.11: Disqualification Model – Code of Judicial Conduct: Canon 2
28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge
Additional Resources
Can a Litigant Appoint His Judge? – a 6min explainer with Alicia Bannon
Judicial Ethics and Recusal Project – Brennan Center for Justice
