Two Justices Resist Revealing Reasons for Recusals | Legal Times

Two U.S. Supreme Court justices on Monday firmly rejected proposals that would increase court transparency: allowing cameras to broadcast proceedings and requiring justices to reveal their reasons for recusal.

Speaking at the court's annual budget hearing before a House appropriations subcommittee, justices Anthony Kennedy and Stephen Breyer responded to questions from members of Congress that went beyond the $78 million budget request.

Rep. Sanford Bishop, D-Georgia, asked the justices why the court is not bound by the code of ethics that covers lower courts, and why justices don't reveal their reasons for recusing.

On the ethics rules, both justices said the court abides by the code in practice, and the fact that they are not legally bound is "just words," as Breyer put it.

As for making a justice's reasons for recusal public, that "should never be discussed," Kennedy said without hesitation. As an example, he said he might recuse because his son is employed by a company that is a party in a case. "The case is very important for my son," Kennedy continued. "Why should I say that? That's almost like lobbying."

Breyer had somewhat different reasons for keeping reasons for recusal private. Being more transparent would make it "logically conceivable," he said, that in future cases a lawyer might include an issue that would force a justice to recuse, for the purpose of creating a "more favorable" eight-justice court to rule in his or her favor. He stressed that unlike with lower courts, when a justice recuses, no other judge can fill in for him or her. As a result, Breyer said, "I have a duty to sit as well as a duty not to sit."

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On the perennial question about cameras in the Supreme Court, this time asked by the subcommittee chair Rep. Alder Crenshaw, R-Florida, Kennedy repeated his long-standing concerns.

The presence of cameras during oral argument, he said, "could affect how we behave," Kennedy said. Justices might start asking questions for the benefit of the public, rather than the court, he said. "I don't want that dynamic."
For his part, Breyer said allowing broadcast of court proceedings would mislead the public into thinking that oral arguments are "the whole story. It's not. It's two percent," Breyer said.

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Following the hearing, Gabe Roth of the transparency advocate Fix the Court, said:
“While their antiquated views on allowing cameras into the courtroom are well known, the back-and-forth between the justices and the members of Congress today demonstrated just how out of touch the Supreme Court has become regarding modern expectations of transparency from public officials."

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SCOTUS budget hearing on youtube: