A U.S. Supreme Court justice should step aside when the governing law and the Court’s Code of Conduct require disqualification—most centrally, when an unbiased, reasonable person aware of the relevant circumstances would doubt that the justice could fairly perform the job. The justice whose impartiality is questioned decides whether to recuse; neither the Chief Justice nor the full Court makes that decision for them.
The standard: could an informed observer doubt the justice’s impartiality?
The Supreme Court’s Code of Conduct for Justices, published November 13, 2023, sets the starting point: “A Justice is presumed impartial and has an obligation to sit unless disqualified.” It then says a justice should disqualify themselves when impartiality “might reasonably be questioned”—that is, when an unbiased and reasonable person who knows all relevant circumstances would doubt the justice could fairly discharge their duties.
This is not simply a test of whether a justice personally believes they can be fair. It asks how a reasonable, informed observer would view the circumstances. The Code applies general principles and statutory standards used for other federal judges, including 28 U.S.C. § 455, while addressing the Supreme Court’s particular institutional setting. The Code’s text and commentary are available in the Court’s Code of Conduct PDF.
What circumstances can require disqualification?
The Code lists grounds that inform the reasonable-observer test. They are examples, not an exhaustive checklist; the central question remains whether an informed, unbiased observer would doubt the justice’s ability to act fairly.
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- Bias or personal knowledge: personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts.
- Prior professional involvement: representing a party at an earlier stage, a former law partner serving as counsel for a party during their association, or the justice or lawyer being a material witness.
- Financial or fiduciary interests: a known financial interest in the subject matter or a party held by the justice, a fiduciary relationship, a spouse, or a minor child living in the household, or another interest that could be substantially affected by the outcome.
- Close relatives’ connections: certain relatives being parties, officers, directors, trustees, attorneys, material witnesses, or having a relevant interest.
- Earlier government or judicial work: participating in the case during prior government service or expressing an opinion on the merits of that particular case during prior government or judicial service.
- Specified family and law-firm ties: a specified relative serving as lead counsel below, or being an equity partner at a firm appearing for a party without written assurance that income from Supreme Court litigation is permanently excluded from that relative’s compensation.
Some grounds depend on what the justice knows. The Code directs each justice to stay informed about their own personal and fiduciary financial interests and to make reasonable efforts to stay informed about the personal financial interests of a spouse and minor children living in the household.
How financial interests are treated
The Code defines a financial interest to include ownership of a legal or equitable interest, however small, and a role as a director, adviser, or other active participant in a party’s affairs. It also establishes exceptions and qualifications. For instance, ownership of shares in a mutual or common investment fund generally is not treated as an interest in securities held by that fund unless the justice participates in managing it. The Code provides additional rules for certain nonprofit, mutual-insurance, savings-association, and government-security interests.
In general, disqualification based on a financial interest in a party is not required if the justice or covered family member divests that interest, unless the interest could be substantially affected by the outcome. Whether a particular connection calls for recusal therefore depends on the Code’s definitions, exceptions, knowledge rules, and the facts; it is not accurate to say that every investment automatically requires recusal or that only direct stock ownership can matter.
Who decides, and how does recusal appear in a case?
The justice whose impartiality is questioned decides whether to recuse. The Code commentary describes the Court’s practice of referring a recusal motion to that justice and says justices evaluate party motions under the same general principles and statutory standards used for other federal judges.
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The Court says recusals are noted in its decisions at both the petition-for-certiorari and merits stages. One example is Fields v. Trump, No. 23-6258: the docket records that Justice Ketanji Brown Jackson did not participate in consideration or decision of the certiorari petition, citing 28 U.S.C. § 455 and Canon 3B(2)(e), which concerns prior judicial service. That is the stated basis in that case, not a rule that explains every justice’s nonparticipation. The entry is on the Court’s docket for No. 23-6258.
Why the Court’s nine-member structure matters
When a justice steps aside, there is no substitute justice to take their place. The Code commentary says losing even one member can affect the exchange of views, the number of votes needed for certiorari under the Court’s current practice, the risk of an evenly divided Court, and the Court’s ability to establish a uniform national rule. It recognizes the rule of necessity: “The rule of necessity may override the rule of disqualification.” That principle is a narrow response to necessity, not a general license to disregard a disqualifying conflict.
The same commentary describes the Court’s workload as approximately 5,000 to 6,000 certiorari petitions a year and says roughly 97 percent may be and are denied at a preliminary stage without joint discussion among the justices. Those figures are the Court’s 2023 descriptions of petitions and preliminary denials; they are not counts of argued cases or recusal rates.
The Code also states that filing an amicus curiae brief, or participation by amicus counsel, does not by itself require disqualification. The presence or advocacy of an amicus is not an automatic recusal trigger.
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On February 17, 2026, the Court announced revised Rules to support new software for automated recusal checks. The system compares information about parties and attorneys in a case with lists maintained by each justice’s chambers. The Court said its Office of Information Technology developed the system with the Legal Office and Clerk’s Office, and that it supplements existing conflict-checking procedures. The revised Rules took effect March 16, 2026.
The software is a screening aid, not an automated decision-maker: the Court’s announcement does not say that it determines whether a justice must recuse. See the Court’s February 17, 2026 announcement for the change and its effective date.
How to assess a reported recusal
When a justice does not participate, distinguish the official explanation from outside speculation. To understand what the recusal means, look for the specific statutory or Code ground, whether it turns on actual knowledge or the reasonable-observer test, the nature and closeness of any financial, family, or professional connection, whether an exception or divestment provision applies, and the case stage and consequences of losing a justice. A docket may state a reason in a particular matter, but that does not establish a universal practice for different facts.
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