On Tuesday’s order list, Justice Ketanji Brown Jackson recused herself from the decision whether to grant review in U.S. Conference of Catholic Bishops v. O’Connell, citing “prior judicial service.” But on the same day, Justice Samuel Alito recused himself in Union Carbide Corp. v. Sommerville without providing any explanation. Are the justices required to explain their decisions to recuse themselves and, if not, why do some do so but not others?
The justices are not required to explain why they do not participate in a particular case, although some do, as this example from Jackson – who served on the district and appeals courts in Washington, D.C., for nine years before joining the Supreme Court – illustrates. Justice Elena Kagan, who served as the U.S. solicitor general for a year before she was confirmed to the court, also often attributes her recusals to “prior government service.”
In an appearance at the SCOTUSblog Summit last fall, Justice Amy Coney Barrett discussed the reasons why the justices might not want to explain why they are recusing. She noted that sometimes the decision to recuse can also affect (and bring attention to) a justice’s friend or family member. As a result, she said, she was inclined to err on the side of not providing any explanations, because you “don’t know what might arise in the future.”
