When must a judge step aside from a case? Judges decide questions of liberty and fortune, and the system depends on the public's confidence that they do so impartially. Recusal rules are meant to protect that confidence, but in most courts the judge whose impartiality is questioned is the one who decides whether to step aside.
In this TalksOnLaw interview, recorded in the fall of 2022, Joel Cohen speaks with Alicia Bannon, who leads the Judiciary Program at the Brennan Center for Justice. Bannon explains the legal standards for recusal, the Supreme Court's due process decisions in Caperton v. A.T. Massey Coal Co. and Williams v. Pennsylvania, financial and family conflicts, waiver and the rule of necessity, judicial speech and public appearances, discipline, and the debate over a code of conduct for the Supreme Court. Her examples include controversies then in the news involving Justice Clarence Thomas and Judge Aileen Cannon. The program reflects the law and events as of the time of taping; the final section summarizes what has changed since.
A Court Under Scrutiny
Cohen recalls that for much of his life the Supreme Court was the most popular branch of government. Bannon notes that public confidence in the Court was then at record lows. In her view, the causes include the Court's direction, especially the Dobbs decision earlier that year, and an increasingly politicized judicial selection process. She argues that a court's authority rests on public trust, including the willingness to follow decisions people disagree with. Asked about the image of the judge as an umpire calling balls and strikes, she says the metaphor can ring hollow because outcomes depend on who the umpire is, and that the justices hold sharply different visions of the law. She expresses her view that the current majority is out of step with much of the public on important constitutional questions; others see the same decisions as faithful applications of the Constitution's text and history.
The Recusal Standard
The key question, Bannon explains, is whether a judge's impartiality might reasonably be questioned. The test is objective: not whether the judge feels biased, but whether a reasonable person who knows the facts would have a real concern that the judge could not decide fairly. Alongside that catch-all are bright-line rules, such as those for a judge's financial interest or a family member's involvement, that require recusal outright. In practice, she says, in the federal courts and most states the judge decides his or her own recusal motion, and people are often poor judges of their own biases. So although the legal standard is objective, recusal decisions often turn on the judge's own view.
Caperton and the Constitutional Floor
Bannon walks through Caperton v. A.T. Massey Coal Co. West Virginia is one of 38 states that use elections to choose high court judges. While Massey was appealing a multimillion-dollar verdict, its chief executive, Don Blankenship, spent about $3 million, much of it through a group called "And For The Sake Of The Kids," to help elect Brent Benjamin to the state's supreme court. Benjamin won, refused to recuse, and cast the deciding vote to overturn the verdict. In a 5–4 decision in 2009, the U.S. Supreme Court held that due process required his recusal because there was a "serious risk of actual bias," judged objectively. Bannon calls Caperton a floor, not a ceiling: codes of conduct can demand more. She notes that the majority confined the case to its extreme facts: the size of the spending relative to the race, the pending case, and the deciding vote. Chief Justice Roberts's dissent posed a long list of questions about where the rule would lead. In her view, those fears did not materialize, and Caperton is underused, partly because lawyers are reluctant to accuse a judge of apparent bias. She said then that more than a decade later, most states still lacked clear rules on recusal for major campaign spending.
Williams-Yulee and Williams v. Pennsylvania
Asked whether today's Court would decide Caperton the same way, Bannon declines to predict, noting that judges' views on judicial integrity do not always track ideological lines. Her example is Williams-Yulee v. Florida Bar (2015), in which Chief Justice Roberts, usually skeptical of campaign finance limits, wrote a 5–4 opinion upholding Florida's ban on judicial candidates personally soliciting contributions, grounded in public confidence in judicial integrity. She then describes Williams v. Pennsylvania (2016). The chief justice of Pennsylvania's supreme court had been the district attorney when his office sought the death penalty against the defendant, and he took part in the state court's decision reinstating the sentence. The U.S. Supreme Court held that due process required his recusal, and that it did not matter that his vote was not decisive, because judges on a multimember court influence one another's deliberations.
Financial Conflicts and the Stock Scandal
Cohen asks whether a $50 campaign contribution would require recusal. Not under Caperton, Bannon says, which turned on unusual facts. Financial interests are different: a judge who owns stock in a party must step aside as a matter of law. She describes the Wall Street Journal's 2021 investigation, which found that 131 federal judges had heard 685 cases involving companies in which they or their families owned stock. In her account, the problem was less wrongdoing than a failure of judicial administration, with conflict-check systems that did not catch the holdings. The episode, she says, was a black eye for the judiciary and led to the Courthouse Ethics and Transparency Act, signed in May 2022, which requires prompt reporting of judges' securities trades and a searchable online database of their financial disclosures. The judiciary also committed to new training.
Family Ties: Justice Thomas and January 6
Federal law, which covers the justices, requires recusal when a family member has an interest that could be substantially affected by a case. Bannon turns to Justice Thomas. In January 2022, the Supreme Court refused to block release of Trump White House records to the House January 6 committee, and Justice Thomas was the only justice noted as voting to grant the request. In March 2022, it was reported that his wife, Virginia "Ginni" Thomas, had exchanged text messages with White House Chief of Staff Mark Meadows urging efforts to overturn the 2020 election. Bannon argues that the case implicated his wife's interests and that he should have recused. Asked whether that depends on what he knew, she says judges have a duty of inquiry and cannot simply avoid learning facts. At a minimum, she says, he should have explained publicly what he knew and when, and committed to stepping aside from future cases involving his wife's interests. Justice Thomas did not publicly explain his participation. Ginni Thomas later told the committee that her husband was unaware of her texts, and defenders have argued that a spouse's independent political activity does not by itself require recusal.
Waiver, Necessity, and Small Courts
Recusal is not a single moment, Bannon notes. A judge may learn of a conflict midway through a case, disclose it, and give the parties an opportunity to waive it. Some conflicts are unavoidable, and the rule of necessity allows a judge to hear a case when every available judge shares the same interest, such as a challenge to a law affecting all judges. Cohen asks about small towns with only one judge. Bannon says states handle the problem differently, sometimes with less demanding rules in small jurisdictions, and sometimes by borrowing visiting judges from other areas.
Appointments, Votes, and Public Comments
Cohen raises a question then in the news: should a judge recuse from a case involving the president who appointed her? At the time, Judge Aileen Cannon, appointed by President Trump, was presiding over his suit about documents seized at Mar-a-Lago. Bannon says she knows of no case law on the question and that appointment alone would not require recusal. The Senate's role in confirmation further distinguishes it from Caperton. A recusal claim would turn on specific facts under the Caperton test, such as promises or assurances made during selection or statements suggesting the president expected protection, that might create a debt of gratitude. Voting for or against a litigant would not require recusal either. She contrasts Justice Ruth Bader Ginsburg's pointed 2016 comments about candidate Trump, which Ginsburg later said she regretted, as the kind of public remark judges should avoid.
Public Appearances and Prejudgment
Ethics rules matter, Bannon says, but they can only go so far; much depends on judges seeing themselves as public servants. She observes growing comfort among judges and justices of differing views with appearances alongside politicians and at events hosted by organizations that often appear before the Court. She acknowledges that such appearances are not formally barred, even under the code for lower federal judges, but argues that they can make the Court seem closely tied to partisan actors. She calls for a Supreme Court code and firmer rules on public appearances. She also acknowledges that judges are constrained in how they can respond to criticism. A central rule, she explains, bars statements that suggest a judge has already decided a case or that commit the judge to a result. Judges need not erase what they have read or thought, but they must remain open to new arguments and facts.
Discipline, Codes, and the Supreme Court
Bannon distinguishes several layers of rules. A federal recusal statute applies to all federal judges, including the justices. A code of conduct, enforced through a complaint and discipline process, applies to lower federal judges; sanctions can include public reprimands but not removal. Every state has a code that covers all its judges, and some state systems can remove judges. She notes that discipline is hard to study because many complaints are never made public. At the time, she said, the Supreme Court was the only court in the country without a binding code of conduct, and impeachment was the only real remedy for a justice's misconduct. Justice Elena Kagan had told Congress in 2019 that the Court was considering a code. Bannon argues that codes give judges guidance and give the public a standard to judge conduct against. She says the Court could adopt one on its own, and that some congressional bills, such as one directing the Court to write its own code, would likely survive a separation-of-powers challenge. She notes that Chief Justice Roberts has expressed skepticism about Congress's power in this area, and that the Court itself would have the last word. She sees the issue as part of a dialogue between the branches, in which pressure from Congress can prompt the Court to act.
What to Know Now
The Supreme Court adopted a Code of Conduct on November 13, 2023, after reporting beginning in April 2023 by ProPublica and others on gifts and travel that Justice Thomas received from Harlan Crow. The justices said the code largely restates principles they had long followed. Its recusal provisions track the federal recusal statute; each justice decides his or her own recusal; and the code has no enforcement mechanism. Justice Thomas has said he was advised that hospitality from close friends without business before the Court was not reportable. In June 2024 he disclosed two 2019 trips he said had been inadvertently omitted. In 2023 the Judicial Conference narrowed the personal-hospitality exemption from disclosure. In January 2025 it declined requests to refer Justice Thomas (from congressional Democrats) and Justice Ketanji Brown Jackson (from a conservative group) to the Justice Department, noting their amended filings and doubting its authority. The Supreme Court Ethics, Recusal, and Transparency Act cleared the Senate Judiciary Committee on an 11–10 party-line vote in July 2023 and was reintroduced in May 2025, but it has not been enacted; Republican critics call it an effort to delegitimize the Court. In July 2026 Senate testimony, Justice Kagan said she supports a way to enforce the code but called it a "very difficult question" given judicial independence. Justice Amy Coney Barrett said the code is "more than aspirational."
Recusal disputes have continued. In May 2024, Justice Samuel Alito declined calls to step aside from January 6 and Trump cases over flags flown at his homes, which he attributed to his wife. Justice Thomas also took part in the 2024 Trump cases. Justice Neil Gorsuch recused from an environmental case in December 2024 after questions about his ties to a businessman with an interest in it. Justice Alito recused from Chevron USA v. Plaquemines Parish in January 2026 because of an oil-company stockholding. In September 2026 he withdrew, without stating a reason, from Suncor Energy v. Boulder County, after environmental groups questioned his energy investments. In July 2026, a coalition of conservative groups urged Justice Kagan to recuse from the same case; she took part in the October 2026 argument. The Court adopted conflict-check software and revised its rules, effective March 16, 2026, to require filers to provide information such as stock ticker symbols.
Elsewhere, an appeals court vacated Judge Cannon's special master order in December 2022. She later presided over the classified documents prosecution of Mr. Trump and dismissed it on July 15, 2024, holding the special counsel's appointment unlawful. The appeal ended after the 2024 election, and Mr. Trump has been President since January 20, 2025. Caperton and Williams still control, and Rippo v. Baker (2017) reaffirmed that recusal can be required without proof of actual bias. Judicial election spending keeps rising: the April 2025 Wisconsin Supreme Court race drew more than $100 million, the most ever spent on a U.S. court race. In June 2026, Wisconsin's supreme court created a committee to study recusal rules after retired judges proposed recusal standards tied to campaign contributions.
