Microsoft Corp. v. United States, 530 U.S. 1301, 1303 (2000) (statement of Rehnquist, C.J.). In short, much can be lost when even one Justice does not participate in a particular case.
This Canon’s recusal provisions thus differ from those in the lower court Code in that they: restate the Justices’ 1993 Statement of Recusal Policy; recognize the duty to sit and that the time-honored rule of necessity may override the rule of disqualification, see United States v. Will, 449 U.S. 200, 217 (1980) (28 U.S.C. § 455 does not alter the rule of necessity); ABA Model Code of Judicial Conduct Rule 2.11 cmt. 3 (“The rule of necessity may override the rule of disqualification.”); and omit the remittal procedure of lower court Code Canon 3D. Canon 3B(2)(d) retains language from the lower court Code relating to known interests of third-degree relatives that might be substantially affected by the outcome of a proceeding. Because of the broad scope of the cases that come before the Supreme Court and the nationwide impact of its decisions, this provision should be construed narrowly. For example, a Justice who has school-age nieces and nephews need not recuse from a case involving student loans even though the disposition of that case could substantially affect the terms on which the Justice’s relatives would finance their higher education.
The Canon’s recusal provisions depend on the Justice’s knowledge of certain relationships or interests. The Court receives approximately 5,000 to 6,000 petitions for writs of certiorari each year. Roughly 97 percent of this number may be and are denied at a preliminary stage, without joint discussion among the Justices, as lacking any reasonable prospect of certiorari review. Recusal issues must be considered in light of this reality. In view of the Canon’s knowledge requirement and the large volume of cases docketed, the Justices rely on the disclosure statements required under the Court’s rules in identifying interested parties that may present grounds for recusal. Individual Justices, rather than the Court, decide recusal issues. See Cheney v. United States Dist. Court for D.C., 540 U.S. 1217 (2004) (“In accordance with its historic practice, the Court refers the motion to recuse in this case to Justice Scalia.”). Recusals are noted in the Court’s decisions, both at the certiorari and merits stages.
In contrast to the lower courts, where filing of amicus briefs is limited, the Supreme Court receives up to a thousand amicus filings each Term. In some recent instances, more than 100 amicus briefs have been filed in a single case. The Court has adopted a permissive approach to amicus filings, having recently modified its rules to dispense with the prior requirement that amici either obtain the consent of all parties or file a motion seeking leave to submit an amicus brief. In light of the Court’s permissive amicus practice, amici and their counsel will not be a basis for an individual Justice to recuse. The courts of appeals follow a similar approach to ameliorating any risk that an amicus filing could precipitate a recusal. Federal Rule of Appellate Procedure 29(a)(2)
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