Constitutional Question:

Under what circumstances should a judge recuse him/herself from a case?

Constitutional Principle:

Separation of Powers

Student PDF

Constitution Resources from the Bill of Rights Institute’s Americapedia:

• The Constitution of the United States —from The Bill of Rights Institute
• Separation of Powers; Article III of the Constitution; and Powers of the President—from the Bill of Rights Institute's Americapedia
• U.S. Code Title 28, § 455 from Cornell University Law School Legal Information Institute

News Resources:

• Judge blocks release of government documents over Kagan's role in health law –CNN [NOTE: Full story not currently loading; we have contacted CNN to see if they can fix it and added the story below from Jurist.]
• Federal judge denies FOIA request for Kagan involvement in health care reform--Jurist
• Kagan, Thomas Targeted in Hopes of Swaying Health Care Ruling—Fox News
• Alito cast 2009 vote in ABC case while family held Disney stock—Associated Press
• SCOTUS Cases Could Affect Presidential Race—NPR

Questions to Consider:

1. What is the role of the judiciary branch in our system of separated powers?

2.     Who appoints Supreme Court Justices, and how long do they serve? Why do you think the Founders decided on this arrangement, which was new for its time? Why is an independent judiciary important?

3.     Judges sometimes recuse themselves from cases (decline to take part in deciding them) because of a conflict of interest. What might some of these reasons be? Brainstorm some situations where it would be appropriate for a judge to recuse him/herself from a case.

4.      Read U.S. Code Title 28, § 455. Under what circumstances does U.S. law require that judges recuse themselves from cases? Under the law, what happens if they do not recuse themselves when they should?

5.    Why do you believe federal law requires that U.S. judges excuse themselves from deciding cases in this circumstances, and/or “in any proceeding in which his impartiality might reasonably be questioned”?

6.    In the politically-charged appeal of the constitutionality of the Affordable Health Care Act, some have called for current Justices to recuse themselves: Justice Elena Kagan because she served as Solicitor General in the Obama Administration during the time the law was being crafted, and Justice Clarence Thomas because of his wife’s work with organizations that actively oppose the law. Would it violate federal law or the Constitution’s separation of powers for either Justice to judge the constitutionality of the Affordable Health Care Act?