Supreme Court Recusal Practice

The other day Justice Kagan realized that she should have recused herself from a case that was argued to the Court last month. (And then she did recuse.) This triggers a modest idea on my part. Why don’t Supreme Court Justices just explain why they are recusing themselves from a matter, rather than making us guess?

I suppose the answer is something like the following:  If Justices start giving reasons for a recusal, then litigants may start filing recusal motions that say “You recused yourself in Case A for Reason X, therefore you must recuse yourself from my case.” Or maybe Justices don’t want people to know the stock that they own at a given moment, since that ownership could lead to a recusal.

Whatever the reason, more transparency in this area would be helpful and, I would submit, not all that harmful.

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