In the United States, the term "recusal" is used most often with respect to court proceedings. 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".
Supreme Court cases In the
Supreme Court of the United States, the Justices have historically recused 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 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. Even if the family member is connected to one of the parties but is not directly involved in the case, justices may recuse themselves – for instance
Clarence Thomas recused himself in
United States v. Virginia because his son was attending
Virginia Military Institute, whose policies were the subject of the case. 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". A notable case was the 2001 death penalty appeal by
Napoleon Beazley, convicted of a 1994 murder, in which a full three justices recused themselves due to personal ties to the victim's son, federal appeals court judge
J. Michael Luttig. Luttig had previously clerked for Justice
Scalia, and had led the confirmation efforts on behalf of both
David Souter and Clarence Thomas. The death sentence was upheld all the same. 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. § 47 provides that "No judge shall hear or determine an appeal from the decision of a case or issue tried by him." A notable dispute over recusal in U.S. Supreme Court history took place in 1946, when Justice
Hugo Black participated in deciding the
Jewell Ridge Coal case, although a former law partner of Black argued for the prevailing side. The losing party in the 5–4 decision sought reargument on the ground that Black should have been disqualified; Black declined to recuse himself and the decision stood, but Justice
Robert H. Jackson wrote a short opinion suggesting that the decision that Black should sit in the case was Black's alone and the Court did not endorse it. The dispute aggravated infighting between Black and Jackson, and it has been suggested that this was one of the reasons that, when Chief Justice
Harlan Fiske Stone died, President
Harry S. Truman appointed
Fred M. Vinson to succeed Stone rather than promote a sitting Associate Justice to Chief Justice. In 1973, then-Associate Justice Rehnquist wrote a lengthy
in-chambers opinion declining to recuse himself in
Laird v. Tatum, a case challenging the validity of certain arrests, even though Rehnquist had previously served as a
White House lawyer and opined that the arrest program was valid. 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.
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. 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. == Best practices ==