Recusal & the Bounds of Judicial Bias
An interview with Alicia Bannon
With incredible powers to make life-changing decisions involving liberty and fortune, judges are expected to make decisions with a threshold level of neutrality. In this conversation, we explore the limits of that threshold. When does judicial bias legally or ethically preclude a judge from hearing a case? Alicia Bannon (director of the Judiciary Project at the Brennan Center for Justice) explains the laws and limits on judicial recusal and where gray areas remain.
Bannon draws on contentious contemporary examples such as cases involving Justice Thomas and his wife’s connection to cases involving January 6th as well as cases relating to former President Trump. Bannon explains that the constitutional test for recusal (under the Due Process protections) is “serious risk of actual bias.” The conversation goes on to explore the limits of that test and potential reforms to improve the integrity of U.S. courts.
Additional Resources
Relevant Cases
Williams v. Pennsylvania - Supreme Court of the United States (2016)
Caperton v. Massey - Supreme Court of the United States (2009)
“Serious Risk of Actual Bias” standard
Williams-Yulee v. The Florida Bar – Supreme Court of the United States (2015)
Relevant Rules and Laws
Rule 2.11: Disqualification Model – Code of Judicial Conduct: Canon 2
28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge
Additional Resources
Can a Litigant Appoint His Judge? – a 6min explainer with Alicia Bannon
Judicial Ethics and Recusal Project – Brennan Center for Justice
About Alicia Bannon
“If you asked most people should a judge be hearing a case involving a major campaign contributor, I think most people would be shocked that's even a question.”
Alicia Bannon is the Director of the Judiciary Program at the Brennan Center for Justice, where she focuses on promoting a fair judicial system. Bannon is an experienced constitutional lawyer and an expert on court reform, access to justice in the legal system, electoral redistricting, and fair representation in government. She manages the Brennan Center’s projects on fair courts and redistricting, overseeing teams of lawyers and researchers engaged in policy advocacy, litigation, legislative campaigns, and research and analysis.
Bannon clerked for the Hon. Sonia Sotomayor in the United States Court of Appeals for the Second Circuit and the Hon. Kimba M. Wood in the United States District Court for the Southern District of New York.
