Judicial Recusal: Does It Always Meet Its Goals?

By Hon. Judith K. Fitzgerald (Ret.), jfitzgerald@tuckerlaw.com, (412) 594-3933

Any lawyer who has considered  asking the presiding judge to step aside from a  case proceeds with trepidation. If the motion succeeds, a newly assigned judge must get up to speed and may  view the proceedings differently than the recused judge did, resulting in delays and possibly repeating work previously done. The consequences for the moving party are not assured as the now-presiding judge may not be the happiest of souls in those circumstances. If the motion fails, the moving party may feel as though the presiding judge will not view that party favorably for any matter going forward. Making the risk/reward analysis is not an easy task and explaining the pros and cons and possible outcome to a client can be uncomfortable. Despite the risk, several recent high-profile cases included recusal motions or recusals by judges on their own initiative.

As a preliminary matter, both federal and state laws require judicial impartiality to ensure every party a fair trial. The United States Supreme Court has held that the Due Process Clause and common law require recusal when a judge has a “direct, personal, substantial, pecuniary interest” in a case or when circumstances create a constitutionally intolerable risk of actual bias. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876-77 (2009) (internal citations omitted). In Caperton, the Court explained that recusal may be required when a party’s substantial campaign contribution creates an appearance of bias, with or without actual bias.

In addition to the Due Process Clause, judicial recusal in the state courts is a matter of state law and generally is codified in state statutes and the Code of Judicial Conduct adopted in the state.  Recusal in federal courts is governed by two statutes (28 U.S.C. §§ 144, 455) and the Code of Judicial Conduct for United States Judges.

The principal reasons for recusal are essentially the same throughout the states and federal government. For example, 28 U.S.C. § 455 applies when judicial impartiality might reasonably be questioned. It also covers certain specific conflicts of interest, such as possessing a financial interest in the subject matter of a party, having represented a party while in practice as a lawyer, having personal bias toward a party, etc.  This statute requires a judge to recuse on his own, without a motion from a party. Title 28 U.S.C. § 144 authorizes a party to file a motion to recuse when it is accompanied by an affidavit stating the facts and reasons for the belief that the judge has a personal bias or prejudice against the party. A motion under this section must be heard by another judge.

Despite the high hurdle to prove that a judge should be removed from the case, several recent cases have involved recusals. Recently, in March of 2026, Elon Musk asked the chancellor presiding over lawsuits involving Tesla to recuse from three actions. One of the actions involves shareholders who contend that Musk breached fiduciary duties by starting competitors and using Tesla resources for the benefit of his other companies. Musk alleged that the judge appeared to have responded with a supportive emoji to a LinkedIn post celebrating his legal losses in an unrelated securities fraud case in California. The judge denied the allegations, stating that she had reported the problem with her LinkedIn social media account, that she was not biased against Musk and did not support the post. Nonetheless, she granted a motion to randomly reassign three complex cases with high stakes involving Musk to other judges to avoid disproportionate media attention surrounding the proceedings which would be detrimental to the administration of justice.

In the criminal context, in January of 2026, the Pennsylvania Superior Court reversed the trial judge’s refusal to recuse, not because of actual bias, but because of the appearance of impropriety. In Commonwealth v. Freeman, 2026 PA Super 5 (Jan. 9, 2026), the defendants were juveniles at the time of the homicides for which they were convicted and were originally sentenced in the 1990s to mandatory life without parole. Years later, when the applicable sentencing law was changed, the defendants were set for resentencing, but the original judge had retired. The cases were reassigned to a judge who previously served as a prosecutor representing the Commonwealth in the appeal of a co-defendant in the same case and in a separate homicide in which the prosecution’s theory relied on the Freeman murders as motivation for the crimes. On appeal, the Superior Court reversed because, among other reasons, a judge’s prior, significant personal involvement in a related case creates an impermissible risk of bias. The Court reaffirmed the principle that a defendant must be sentenced by an impartial judge whose neutrality cannot be questioned.

Those cases hold true to the concept that recusal is protection for a party as well as for public perception of the neutrality of our judicial system, all with the goal of achieving justice for the parties through established legal procedures.

But there is a third case with unusual facts involving the United States Supreme Court that may not live up to that goal. In Baker v. Coates, 145 S. Ct. 2699 (Mem), 2025 WL 1426671 (2025), a copyright case, five members of the Court (Alito, Barrett, Gorsuch, Jackson and Sotomayor) recused themselves without a motion and without specifying a reason. Regarding the Justices other than Alito, the recusal most likely happened because a party in the lawsuit was Bertelsmann, parent of Penguin Random House publishing company. Penguin Random House is involved in book deals with the four recused justices other than Alito. (Justice Alito has a publication arrangement with Basic Liberty imprint of Basic Books, which is not affiliated with Penguin Random House.)   The consequence of five justices recusing presented a quandary for the Court: there was no majority of justices available to hear the appeal. 

The Baker Court’s entire opinion states: “Because the Court lacks a quorum, 28 U. S. C. § 1, and since the qualified Justices is [sic] of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U.S.C. § 2109, which provides that under this circumstances [sic] ‘the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.’ Justice Alito, Justice Sotomayor, Justice Gorsuch, Justice Barrett, and Justice Jackson took no part in the consideration or decision of this petition.” Baker v. Coates, supra, 145 S. Ct. 2699-2700 (Mem).

There is no doubt that the justices with the Penguin Random House agreements properly recused themselves without a motion from a party, given the conflict, or at least the appearance of bias, in the circumstances. Nonetheless, query whether justice – or the public’s perception of fairness – is served when the ultimate arbiters of the result of a case cannot sit to hear the appeal due to other lucrative financial interests they acquire, and which, quite possibly, they acquired due to the prestige they hold as Associate Justices of the United States Supreme Court. Note that none of the recused justices had Penguin Random House book deals before joining the Supreme Court.

A Google search for “how+much+did+the+supreme+court+justices+get+for+their+book+deals” reported that Justices Barrett, Gorsuch,  Jackson, Sotomayor and Kavanaugh (who published an academic book through the Princeton University Press, which is not an affiliate of Penguin Random House, before he joined the Supreme Court and is not one of the five who recused) received advances and/or royalties varying in amounts between approximately $340,000 and nearly $4,000,000 from their publication arrangements. These payments are substantially more than what the current law applicable to all sitting federal judges provides regarding earnings from outside income sources such as teaching and speaking engagements. Those earnings cannot exceed fifteen percent of the current salary of the office. The current salary of an Associate Justice is $277,000 annually. Fifteen percent of that salary is $41,500. However, earnings from book publications are not included in that calculation, are not limited by statute or otherwise, and can reach millions of dollars – far more than the Justices make for carrying out the duties of their lifetime jobs.   

Of course, recusal should have happened just because the Justices had the publication contracts, with or without advances or royalties. But none of the four justices had agreements like these before accepting positions on the Supreme Court. Would they have entered into these deals without substantial compensation? Regardless, the fact is that the contracts prohibited the recused judges from carrying out the duties their oaths of office require due to the actual conflicts or appearances of bias created.

Recusal is a rigorous process intended to protect the parties’ rights to an impartial, neutral jurist whether brought by a motion or instituted by the judge on his own. Recusal also is intended to protect the judicial system and the public’s positive impression and support for that system. But when recusals in a case are so numerous that a litigant cannot receive a final review of the issues on appeal, we return to the title question: does recusal always meet its goals?

Reprinted with permission from the June 22, 2026, issue of The Legal Intelligencer. © 2026 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.