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SUPREME COURT OF THE UNITED STATES
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No. 92-6921
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JOHN PATRICK LITEKY, CHARLES JOSEPH
LITEKY and ROY LAWRENCE BOURGEOIS,
PETITIONERS v. UNITED STATES
on writ of certiorari to the united states court
of appeals for the eleventh circuit
[March 7, 1994]

  Justice Kennedy, with whom Justice Blackmun,
Justice Stevens and Justice Souter join, concurring
in the judgment.
  The Court's ultimate holding that petitioners did not
assert sufficient grounds to disqualify the district judge
is unexceptionable.  Nevertheless, I confine my concur-
rence to the judgment, for the Court's opinion announces
a mistaken, unfortunate precedent in two respects.
First, it accords nearly dispositive weight to the source
of a judge's alleged partiality, to the point of stating
that disqualification for intrajudicial partiality is not
required unless it would make a fair hearing impossible.
Second, the Court weakens the principal disqualification
statute in the federal system, 28 U. S. C. 455, by
holding-contrary to our most recent interpretation of
the statute in Liljeberg v. Health Services Acquisition
Corp., 486 U. S. 847 (1988)-that the broad protections
afforded by subsection (a) are qualified by limitations
explicit in the specific prohibitions of subsection (b).

                            I
  We took this case to decide whether the reach of
455(a) is limited by the so-called extrajudicial source
rule.  I agree with the Court insofar as it recognizes

that there is no per se rule requiring that the alleged
partiality arise from an extrajudicial source.  In my
view, however, the Court places undue emphasis upon
the source of the challenged mindset in determining
whether disqualification is mandated by 455(a).

                            A
  Section 455(a) provides that a judge -shall disqualify
himself in any proceeding in which his impartiality
might reasonably be questioned.-  For present purposes,
it should suffice to say that 455(a) is triggered by an
attitude or state of mind so resistant to fair and dis-
passionate inquiry as to cause a party, the public, or a
reviewing court to have reasonable grounds to question
the neutral and objective character of a judge's rulings
or findings.  I think all would agree that a high thresh-
old is required to satisfy this standard.  Thus, under
455(a), a judge should be disqualified only if it appears
that he or she harbors an aversion, hostility or disposi-
tion of a kind that a fair-minded person could not set
aside when judging the dispute.
  The statute does not refer to the source of the disqual-
ifying partiality.  And placing too much emphasis upon
whether the source is extrajudicial or intrajudicial dis-
tracts from the central inquiry.  One of the very objects
of Law is the impartiality of its judges in fact and ap-
pearance.  So in one sense it could be said that any dis-
qualifying state of mind must originate from a source
outside law itself.  That metaphysical inquiry, however,
is beside the point.  The relevant consideration under
455(a) is the appearance of partiality, see Liljeberg,
supra, at 860, not where it originated or how it was
disclosed.  If, for instance, a judge presiding over a
retrial should state, based upon facts adduced and opin-
ions formed during the original cause, an intent to en-
sure that one side or the other shall prevail, there can
be little doubt that he or she must recuse.  Cf. Rugen-
stein v. Ottenheimer, 78 Ore. 371, 372, 152 P. 215, 216
(1915) (reversing for judge's failure to disqualify himself
on retrial, where judge had stated: -`This case may be
tried again, and it will be tried before me.  I will see to
that.  And I will see that the woman gets another ver-
dict and judgment that will stand.'-).
  I agree, then, with the Court's rejection of the per se
rule applied by the Court of Appeals, which provides
that -matters arising out of the course of judicial pro-
ceedings are not a proper basis for recusal- under
455(a).  973 F. 2d 910, 910 (CA11 1992).  But the
Court proceeds to discern in the statute an extrajudicial
source interpretive doctrine, under which the source of
an alleged deep-seated predisposition is a primary factor
in the analysis.  The Court's candid struggle to find a
persuasive rationale for this approach demonstrates that
prior attempts along those lines have fallen somewhat
short of the mark.  This, I submit, is due to the fact
that the doctrine crept into the jurisprudence more by
accident than design.
  The term -extrajudicial source,- though not the in-
terpretive doctrine bearing its name, has appeared in
only one of our previous cases: United States v. Grinnell
Corp., 384 U. S. 563 (1966).  Respondents in Grinnell
alleged that the trial judge had a personal bias against
them, and sought his disqualification and a new trial
under 28 U. S. C. 144.  That statute, like 455(b)(1),
requires disqualification for -bias or prejudice.-  In
denying respondents' claim, the Court stated that -[t]he
alleged bias and prejudice to be disqualifying must stem
from an extrajudicial source and result in an opinion on
the merits on some basis other than what the judge
learned from his participation in the case.-  Id., at 583.
  Although Grinnell's articulation of the extrajudicial
source rule has a categorical aspect about it, the
decision, on closer examination, proves not to erect a
per se barrier.  After reciting what appeared to be an
absolute rule, the Court proceeded to make a few addi-
tional points: that certain in-court statements by the
judge -reflected no more than his view that, if the facts
were as the Government alleged, stringent relief was
called for-; that during the trial the judge -repeatedly
stated that he had not made up his mind on the mer-
its-; and that another of the judge's challenged state-
ments did not -manifes[t] a closed mind on the merits
of the case,- but rather was -a terse way- of reiterating
a prior ruling.  Ibid.  Had we meant the extrajudicial
source doctrine to be dispositive under 144, those fur-
ther remarks would have been unnecessary.
  More to the point, Grinnell provides little justification
for its announcement of the extrajudicial source rule, re-
lying only upon a citation to Berger v. United States,
255 U. S. 22, 31 (1921).  The cited passage from Berger,
it turns out, does not bear the weight Grinnell places on
it, but stands for the more limited proposition that the
alleged bias -must be based upon something other than
rulings in the case.-  Ibid.  Berger, in turn, relies upon
an earlier case advancing the same narrow proposition,
Ex parte American Steel Barrel Co., 230 U. S. 35, 44
(1913) (predecessor of 144 -was never intended to en-
able a discontented litigant to oust a judge because of
adverse rulings made, for such rulings are reviewable
otherwise-).  There is a real difference, of course, be-
tween a rule providing that bias must arise from an ex-
trajudicial source, and one providing that judicial rulings
alone cannot sustain a challenge for bias.  Grinnell,
therefore, provides a less than satisfactory rationale for
reading the extrajudicial source doctrine into 144 or
the disqualification statutes at issue here.  It should
come as little surprise, then, that the Court does not
enlist Grinnell to support its adoption of the doctrine.
  The Court adverts to, but does not ratify, ante, at 9,
an alternative rationale: the requirement in 144 that
a litigant's recusal affidavit -be filed not less than 10
days before the beginning of the term at which the pro-
ceeding is to be heard,- unless -good cause [is] shown for
failure to file it within such time.-  If a litigant seeking
disqualification must file an affidavit 10 days before the
beginning of the term, the argument goes, the alleged
bias cannot arise from events occurring or facts adduced
during the litigation.  See Berger, supra, at 34-35.  That
rationale fails as well.  The 10-day rule has been an
anachronism since 1963, when Congress abolished formal
terms of court for United States district courts.  See 28
U. S. C. 138.  In any event, the rule always had an
exception for good cause.  And even if the 10-day re-
quirement could justify reading the extrajudicial source
rule into 144, it would not suffice as to 455(a) or
455(b)(1), which have no analogous requirement.
  The Court is correct to reject yet another view, which
has gained currency in several Courts of Appeals, that
the term -personal- in 144 and 455(b)(1) provides a
textual home for the extrajudicial source doctrine.  Ante,
at 8-10.
  Given the flaws with prior attempts to justify the
doctrine, the Court advances a new rationale: The doc-
trine arises from the pejorative connotation of the term
-bias or prejudice- in 144 and 455(b)(1) and the con-
verse of the term -impartiality- in 455(a).  Ante, at 10,
12-13.  This rationale, as the Court acknowledges, does
not amount to much.  It is beyond dispute that chal-
lenged opinions or predispositions arising from outside
the courtroom need not be disqualifying.  See, e.g.,
United States v. Conforte, 624 F. 2d 869, 878-881 (CA9),
cert. denied, 449 U. S. 1012 (1980).  Likewise, prejudiced
opinions based upon matters disclosed at trial may rise
to the level where recusal is required.  See, e.g., United
States v. Holland, 655 F. 2d 44 (CA5 1981); Nicodemus
v. Chrysler Corp., 596 F. 2d 152, 155-157, and n. 10
(CA6 1979).  From this, the Court is correct to conclude
that an allegation concerning some extrajudicial matter
is neither a necessary nor a sufficient condition for dis-
qualification under any of the recusal statutes.  Ante, at
14.  The Court nonetheless proceeds, without much ex-
planation, to find -a significant (and often determinative)
`extrajudicial source' factor- in those statutes.  Ibid. (em-
phasis in original).
  This last step warrants further attention.  I recognize
along with the Court that, as an empirical matter,
doubts about a judge's impartiality seldom have merit
when the challenged mindset arises as a result of some
judicial proceeding.  The dichotomy between extrajudicial
and intrajudicial sources, then, has some slight utility;
it provides a convenient shorthand to explain how courts
have confronted the disqualification issue in circum-
stances that recur with some frequency.
  To take a common example, litigants (like petitioners
here) often seek disqualification based upon a judge's
prior participation, in a judicial capacity, in some related
litigation.  Those allegations are meritless in most in-
stances, and their prompt rejection is important so the
case can proceed.  Judges, if faithful to their oath,
approach every aspect of each case with a neutral and
objective disposition.  They understand their duty to
render decisions upon a proper record and to disregard
earlier judicial contacts with a case or party.
  Some may argue that a judge will feel the -motivation
to vindicate a prior conclusion- when confronted with a
question for the second or third time, for instance upon
trial after a remand.  Ratner, Disqualification of Judges
for Prior Judicial Actions, 3 How. L. J. 228, 229-230
(1957).  Still, we accept the notion that the -conscien-
tious judge will, as far as possible, make himself aware
of his biases of this character, and, by that very self-
knowledge, nullify their effect.-  In re J. P. Linahan,
Inc., 138 F. 2d 650, 652 (CA2 1943).  The acquired skill
and capacity to disregard extraneous matters is one of
the requisites of judicial office.  As a matter of sound
administration, moreover, it may be necessary and pru-
dent to permit judges to preside over successive causes
involving the same parties or issues.  See Rules Govern-
ing Section 2255 Proceedings for the United States Dis-
trict Courts, Rule 4(a) (-The original motion shall be
presented promptly to the judge of the district court who
presided at the movant's trial and sentenced him, or, if
the judge who imposed sentence was not the trial judge,
then it shall go to the judge who was in charge of that
part of the proceedings being attacked by the movant-).
The public character of the prior and present proceed-
ings tends to reinforce the resolve of the judge to weigh
with care the propriety of his or her decision to hear the
case.
  Out of this reconciliation of principle and practice
comes the recognition that a judge's prior judicial ex-
perience and contacts need not, and often do not, give
rise to reasonable questions concerning impartiality.

                            B
  There is no justification, however, for a strict rule
dismissing allegations of intrajudicial partiality, or the
appearance thereof, in every case.  A judge may find it
difficult to put aside views formed during some earlier
proceeding.  In that instance we would expect the judge
to heed the judicial oath and step down, but that does
not always occur.  If through obduracy, honest mistake,
or simple inability to attain self-knowledge the judge
fails to acknowledge a disqualifying predisposition or
circumstance, an appellate court must order recusal no
matter what the source.  As I noted above, the central
inquiry under 455(a) is the appearance of partiality,
not its place of origin.
  I must part, then, from the Court's adoption of a
standard that places all but dispositive weight upon the
source of the alleged disqualification.  The Court holds
that opinions arising during the course of judicial
proceedings require disqualification under 455(a) only
if they -display a deep-seated favoritism or antagonism
that would make fair judgment impossible.-  Ante, at 15.
That standard is not a fair interpretation of the statute,
and is quite insufficient to serve and protect the integ-
rity of the courts.  In practical effect, the Court's stand-
ard will be difficult to distinguish from a per se extraju-
dicial source rule, the very result the Court professes to
reject.
  The Court's -impossibility of fair judgment- test bears
little resemblance to the objective standard Congress
adopted in 455(a): whether a judge's -impartiality
might reasonably be questioned.-  The statutory stand-
ard, which the Court preserves for allegations of an
extrajudicial nature, asks whether there is an appear-
ance of partiality.  See Liljeberg, 486 U. S., at 860
(-[t]he goal of section 455(a) is to avoid even the appear-
ance of partiality-) (internal quotation marks omitted);
United States v. Chantal, 902 F. 2d 1018, 1023 (CA1
1990).  The Court's standard, in contrast, asks whether
fair judgment is impossible, and if this test demands
some direct inquiry to the judge's actual, rather than ap-
parent, state of mind, it defeats the underlying goal of
455(a): to avoid the appearance of partiality even when
no partiality exists.
  And in all events, the -impossibility of fair judgment-
standard remains troubling due to its limited, almost
preclusive character.  As I interpret it, a 455(a) chal-
lenge would fail even if it were shown that an unfair
hearing were likely, for it could be argued that a fair
hearing would be possible nonetheless.  The integrity of
the courts, as well as the interests of the parties and
the public, are ill-served by this rule.  There are bound
to be circumstances where a judge's demeanor or atti-
tude would raise reasonable questions concerning impar-
tiality but would not devolve to the point where one
would think fair judgment impossible.
  When the prevailing standard of conduct imposed by
the law for many of society's enterprises is reasonable-
ness, it seems most inappropriate to say that a judge is
subject to disqualification only if concerns about his or
her predisposed state of mind, or other improper
connections to the case, make a fair hearing impossible.
That is too lenient a test when the integrity of the
judicial system is at stake.  Disputes arousing deep
passions often come to the courtroom, and justice may
appear imperfect to parties and their supporters disap-
pointed by the outcome.  This we cannot change.  We
can, however, enforce society's legitimate expectation
that judges maintain, in fact and appearance, the convic-
tion and discipline to resolve those disputes with detach-
ment and impartiality.
  The standard that ought to be adopted for all alle-
gations of an apparent fixed predisposition, extrajudicial
or otherwise, follows from the statute itself: Disqualifi-
cation is required if an objective observer would enter-
tain reasonable questions about the judge's impartiality.
If a judge's attitude or state of mind leads a detached
observer to conclude that a fair and impartial hearing is
unlikely, the judge must be disqualified.  Indeed, in such
circumstances, I should think that any judge who under-
stands the judicial office and oath would be the first to
insist that another judge hear the case.
  In matters of ethics, appearance and reality often con-
verge as one.  See Offutt v. United States, 348 U. S. 11,
14 (1954) (-[J]ustice must satisfy the appearance of jus-
tice-); Ex parte McCarthy, [1924] 1 K. B. 256, 259 (1923)
(-[J]ustice should not only be done, but should mani-
festly and undoubtedly be seen to be done-).  I do not
see how the appearance of fairness and neutrality can
obtain if the bare possibility of a fair hearing is all that
the law requires.  Cf. Marshall v. Jerrico, Inc., 446 U. S.
238, 242 (1980) (noting the importance of -preserv[ing]
both the appearance and reality of fairness,- which -`gen-
erat[es] the feeling, so important to a popular govern-
ment, that justice has been done'-) (quoting Joint Anti-
Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 172
(1951) (Frankfurter, J., concurring)).
  Although the source of an alleged disqualification may
be relevant in determining whether there is a reasonable
appearance of impartiality, that determination can be ex-
plained in a straightforward manner without resort to a
nearly dispositive extrajudicial source factor.  I would
apply the statute as written to all charges of partiality,
extrajudicial or otherwise, secure in my view that dis-
trict and appellate judges possess the wisdom and good
sense to distinguish substantial from insufficient allega-
tions and that our rules, as so interpreted, are sufficient
to correct the occasional departure.

                           II
  The Court's effort to discern an -often dispositive- ex-
trajudicial source factor in 455(a) leads it to an addi-
tional error along the way.  As noted above, the Court
begins by explaining that the pejorative connotation of
the term -bias or prejudice- demonstrates that the
source of an alleged bias is significant under 144 and
455(b)(1).  The Court goes on to state that -it is unrea-
sonable to interpret 455(a) (unless the language re-
quires it) as implicitly eliminating a limitation explicitly
set forth in 455(b).-  Ante, at 13 (emphasis in original).
That interpretation, the Court reasons, -would cause the
statute, in a significant sense, to contradict itself.-  Ibid.
  We rejected that very understanding of the interplay
between 455(a) and (b) in Liljeberg v. Health Services
Acquisition Corp., 486 U. S. 847 (1988).  Respondent in
Liljeberg sought to disqualify a district judge under
455(a) because the judge (in his capacity as trustee of
a university) had a financial interest in the litigation,
albeit an interest of which he was unaware.  Petitioner
opposed disqualification, and asked us to interpret
455(a) in light of 455(b)(4), which provides for dis-
qualification only if the judge -knows that he, individu-
ally or as a fiduciary . . . has a financial interest in the
subject matter in controversy or in a party to the pro-
ceeding.-  According to petitioner, the explicit knowledge
requirement in 455(b)(4) indicated that Congress in-
tended a similar requirement to govern 455(a).  See
Liljeberg, 486 U. S., at 859, n. 8.  Otherwise, petitioner
contended, the knowledge requirement in 455(b)(4)
would be meaningless.  Ibid.
  In holding for respondent, we emphasized that there
were -important differences- between subsections (a) and
(b), and concluded that the explicit knowledge require-
ment under 455(b)(4) does not apply to disqualification
motions filed under 455(a).  Id., at 859-860, and n. 8.
Liljeberg teaches, contrary to what the Court says today,
that limitations inherent in the various provisions of
455(b) do not, by their own force, govern 455(a) as
well.  The structure of 455 makes clear that subsec-
tions (a) and (b), while addressing many of the same
underlying circumstances, are autonomous in operation.
Subsection 455(b) commences with the charge that a
judge -shall also disqualify himself in the following
circumstances-; Congress' inclusion of the word -also-
indicates that subsections (a) and (b) have independent
force.  Section 455(e), which permits parties to waive
grounds for disqualification arising under 455(a), but
not 455(b), provides further specific textual confirma-
tion of the difference.
  The principal distinction between 455(a) and (b) is
apparent from the face of the statute.  Section 455(b) de-
lineates specific circumstances where recusal is man-
dated; these include instances of actual bias as well
as specific instances where actual bias is assumed.  See
28 U. S. C. 455(b)(1) (-personal bias or prejudice-);
455(b)(2) (judge -served as [a] lawyer in the matter
in controversy- while in private practice); 455(b)(3)
(same while judge served in government employment);
455(b)(4) (-financial interest- in the litigation);
455(b)(5) (judge -within the third degree of relation-
ship- to a party, lawyer, or material witness).  Section
455(a), in contrast, addresses the appearance of partial-
ity, guaranteeing not only that a partisan judge will not
sit, but also that no reasonable person will have that
suspicion.  See Liljeberg, supra, at 860.
  Because the appearance of partiality may arise when
in fact there is none, see, e.g., Hall v. Small Business
Admin., 695 F. 2d 175, 179 (CA5 1983); United States v.
Ritter, 540 F. 2d 459, 464 (CA10), cert. denied, 429
U. S. 951 (1976), the reach of 455(a) is broader than
that of 455(b).  One of the distinct concerns addressed
by 455(a) is that the appearance of impartiality be
assured whether or not the alleged disqualifying circum-
stance is also addressed under 455(b).  In this respect,
the statutory scheme ought to be understood as extend-
ing 455(a) beyond the scope of 455(b), and not confin-
ing 455(a) in large part, as the Court would have it.
See ante, at 13-14, n. 2.  The broader reach of 455(a)
is confirmed by the rule permitting its more comprehen-
sive provisions, but not the absolute rules of 455(b), to
be waived.  See 28 U. S. C. 455(e).  And in all events,
I suspect that any attempt to demarcate an "area of
overlap" (ante, at 13) between 455(a) and (b) will prove
elusive in many instances.
  Given the design of the statute, then, it is wrong to
impose the explicit limitations of 455(b) upon the more
extensive protections afforded by 455(a).  See Liljeberg,
supra, at 859-861, and n. 8.  The Court's construction
of the statute undercuts the protection Congress put in
place when enacting 455(a) as an independent guaran-
tee of judicial impartiality.

                           III
  The Court describes in all necessary detail the un-
impressive allegations of partiality, and the appearance
thereof, in this case.  The contested rulings and com-
ments by the trial judge were designed to ensure the
orderly conduct of petitioners' trial.  Nothing in those
rulings or comments raises any inference of bias or par-
tiality.  I concur in the judgment.