Regulating supreme court recusals

Abstract

This article presents a critical analysis of the approach of the U.S. Supreme Court to recusal motions aimed at one of the Justices of the Court. The catalyst was the controversy arising from the weekend duck-hunting trip of U.S.Vice-President Richard Cheney and Supreme Court Justice Antonin Scalia, after which Justice Scalia denied a motion to recuse himself from a pending case in which his hunting partner, Mr Cheney, was a party. This startling decision is final and conclusive since the Supreme Court refuses to intervene in such decisions. Such an approach by the Court is untenable and contrasts starkly with that of the House of Lords, which did not shrink from disqualifying Lord Hoffmann on grounds of bias in the Pinochet case. A comparative study of comparable common law jurisdictions exposes the U.S. Supreme Court as an island of isolation over this issue. It also provides accessible solutions that are disarming in their simplicity. The particular responses that are commended in this article are formalized self-regulation and substitution.