“Blood Feud” Inside the Supreme Court on Question of Recusal

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Every now and again, the public displays an intense interest in the question of whether Supreme Court Justices ought to recuse themselves from a particular case because it appears that they have a conflict of interest that might prevent them from delivering an impartial ruling.

In 1816, Chief Justice John Marshall recused himself from participating in the landmark case, Martin v. Hunter’s Lessee, because he had a conflict of interest. The public was aware of his conflicts. He had appeared as counsel in an earlier phase of the case and had a financial interest in the property that was at issue. The decision, the Justices agreed, was Marshall’s alone, and he acted appropriately.

The Court’s historical understanding—and practice—of deferring the matter of recusal to individual Justices has stood the test of time. Only an individual Justice can decide, as a matter of conscience, after full appraisal of the relevant facts and factors, mindful of public perception on the crucial question of judicial impartiality, whether he or she should withdraw from the case.

But there was at least one moment in the Court’s history when a “blood feud” erupted between two Justices—Robert Jackson and Hugo Black—on the question of whether Black should recuse himself because of a potential conflict of interest. The acerbic argument spilled over to the rest of the Court, igniting among the strong and talented Justices partisan factions that, in the words of former Chief Justice William Rehnquist, left “a mark on future relationships.” The feud became the subject of newspaper commentary and Washington gossip.

In 1944 and 1945, two cases came before the Court involving the Fair Labor Standards Act on contracts between mine workers and their employers. The workers were represented in each case by Crompton Harris who, for a brief time, some 20 years before, had been Black’s law partner. The mine workers were successful in both cases, enjoying decisions that exceeded the collective bargaining agreements in the context of overtime benefits. Black voted with the majority. Jackson dissented on grounds that the decisions were overly broad and politically inspired.

The Jewel Ridge Corporation, the defeated party in the second case on a 5-4 vote, asserted its right under the Court’s rules, to petition the Justices for a rehearing, and claimed that Justice Black should have disqualified himself based on his connection to Harris. The Court rarely grants these petitions, and their denial is a matter of form. Chief Justice Harlan Fiske Stone might simply have drafted the usual order of denial but instead decided to draft a short opinion stating that the question of a Justice’s recusal is never open for consideration by the entire Court.

None of the Justices wanted to grant the petition for a rehearing. Stone’s draft, however, set the stage for the Justices’ robust discussion in conference about recusal, against a backdrop of antagonisms that were revealed a year later—May 15, 1946—by a Washington newspaper columnist, Doris Fleeson, whose sources were inside the Court. Ms. Fleeson had referred to the rising tensions between Black and Jackson as a “blood feud,” principally because Black had viewed Jackson’s suggestion that he disqualify himself in the Jewel Ridge case as “an open and gratuitous insult, a slur upon his personal and judicial honor.”

Justice Jackson, serving as Chief Prosecutor at the Nuremberg Trials, received word of Fleeson’s column and immediately perceived that her sources were members of the Court eager to discredit his candidacy to succeed Stone as Chief Justice, a post that he coveted and felt entitled to based on promises from President Roosevelt. Roosevelt was deceased and President Harry Truman was under no moral obligation to honor any promises made by his predecessor.

Jackson prepared a public statement describing in detail his role in the Jewell Ridge recusal controversy. On June 10, 1946, four days after Truman appointed Fred Vinson to become Chief Justice, Jackson described Fleeson’s account as detrimental to the Court’s reputation for “nonpartisan and unbiased” decisions, declared insinuations of personal vendettas among the Justices were “utterly false” and insisted that his differences with Black involved questions not of “honor” but of “judgment as to sound judicial policy” in matters of disqualification.

Jackson explained that the discussion in conference surrounded the question of whether the Court should summarily dismiss the petition for a rehearing or cite its lack of power, as an institution, to pass on disqualification issues. Jackson acknowledged that he had in conference argued that the Court should discuss the recusal question, which triggered an angry response from Black, who stated that any such opinion “would amount to a declaration of war.” For their part, Jackson and Felix Frankfurter said they were unwilling to give “blind and unqualified approval” to Black’s participation in Jewell Ridge.

While the Court issued a formal rejection of the petition for rehearing, the conference discussion reveals that in any future discussion about recusal, some Justices may feel free to weigh in as a matter of protecting the integrity of the judiciary while others may retreat from declaring their views as a means of avoiding the storm that engulfed the Court in the Jewell Ridge controversy.

The guiding question should be: what best serves the Court’s reputation?