Page:EO 14023 Commission Final Report.pdf/230

 22 provides that a party may renew its request to another Justice on the Court. Sometimes Justices refer emergency motions to the entire court.

It is not clear how the Court’s operations or relations among the Justices would be affected by an internal process for review of recusal decisions. There has been at least one occasion in the Court’s history where disagreement over recusal has led to a significant feud. Because recusal can be case dispositive, were the ultimate decision on recusal to rest with the entire Court, a decision by the Court to force a Justice to recuse may lead to accusations of improper purpose. These issues may not be insuperable; some state supreme courts have a referral process for recusal decisions and the process appears to work without undue friction or burden in that setting. The practice of comparable high courts in other countries, such as those in Canada and the UK, also may be instructive. It appears that neither Canada nor the UK has a referral practice for recusal on its highest court and that high court justices decide recusal on their own without further review, as in the U.S. Supreme Court. The views of the Justices would be particularly helpful in any further analysis.

Context suggests that a significant number of Supreme Court recusals are due to a Justice’s financial conflict. Indeed, a study of recusals at the certiorari stage in Terms 2003–2013 revealed that there was at least one recusal in 10% of certiorari petitions involving a Forbes 100 company. What makes these numbers surprising is that the Justices (along with their spouses and dependent children) are legally enabled to divest themselves of any stock that is causing a conflict without incurring capital gains tax. It may be that there is something about the wording or operation of the relevant statute, 26 U.S.C. § 1043, that limits its reach or effectiveness. If so, the Court might speak to this issue so that the statute might be improved.

Given the significant number of financial recusals, some have suggested reforms that may reduce the number of recusals due to financial conflicts. For example, Congress could act to prohibit Justices, their spouses, and any dependent children from owning individual shares in publicly traded companies, or Congress could require divestment when a conflict arises. Both reforms would reduce financial conflicts significantly (and eliminate conflicts arising from stock ownership).

The Commission notes a building consensus among observers that no Justices or their spouses and dependent children should own or continue to own individual publicly traded securities.