SOTOMAYOR, J., dissenting

Cite as: 589 U. S. ____ (2019) 1 

Statement of SOTOMAYOR, J. 

SUPREME COURT OF THE UNITED STATES 

KENNETH R. ISOM v. ARKANSAS 

ON PETITION FOR WRIT OF CERTIORARI TO THE 

SUPREME COURT OF ARKANSAS 

No. 18–9517. Decided November 25, 2019 

The petition for a writ of certiorari is denied. 

 Statement of JUSTICE SOTOMAYOR respecting the denial 

of certiorari. 

Petitioner Kenneth Isom was thrice charged with burglary and theft offenses by Drew County, Arkansas, prosecutor Sam Pope. Isom was acquitted on two of those occasions, but was convicted on the third. After Isom was 

granted parole three years into his sentence, Prosecutor

Pope met with the Office of the Governor to express his concern and to inquire whether Isom could somehow be returned to prison, but to no avail. 

Seven years later, a jury convicted Isom of capital murder

in a case presided over by Pope himself—now a Drew

County judge. Isom sought postconviction relief, which was 

denied, also by Judge Pope. The Arkansas Supreme Court 

later granted Isom leave to file a writ of coram nobis to challenge the State’s suppression of critical evidence under 

Brady v. Maryland, 373 U. S. 83 (1963). That suppressed 

evidence pertained to, among other things, a suggestive 

photo identification and the inconsistent testimony of a 

state witness. 

Again, Judge Pope presided. Isom filed a recusal motion, 

alleging that Pope’s prior efforts to prosecute Isom (and to

rescind his parole) created, at the very least, an appearance 

of bias requiring recusal under the Due Process Clause.

Judge Pope denied the motion. After crediting testimony 

that supported his original photo-identification ruling, and

after limiting discovery relevant to the inconsistent- 
 

Statement of SOTOMAYOR, J. 

2 ISOM v. ARKANSAS 

Statement of SOTOMAYOR, J. 

testimony issue, Judge Pope also denied coram nobis relief. 

The Arkansas Supreme Court affirmed. 2018 Ark. 368, 

563 S. W. 3d 533. Justices Hart and Wood dissented, concluding that there was at least an appearance of bias that 

required recusal. Justice Hart reasoned that the unusual 

coram nobis posture presented an especially compelling

case for recusal, because Judge Pope was in the “untenable

position” of evaluating his own prior findings about

whether the photo identification should have been suppressed. Id., at 550. Justice Hart also considered it significant that, after a state witness appeared to become confused during cross-examination, Judge Pope rehabilitated 

the witness and ordered a recess, after which the witness 

testified that his prior statements were mistaken. Id., at 

551. Justice Wood, in turn, found it difficult to afford Judge 

Pope the usual deference extended to the close, discretionary decisions of circuit court judges, given his “extensive 

history” with Isom. Id., at 552. 

Our precedents require recusal where the “probability of 

actual bias on the part of the judge or decisionmaker is too 

high to be constitutionally tolerable.” Rippo v. Baker, 580 

U. S. ___, ___ (2017) (per curiam) (slip op., at 2) (quoting 

Withrow v. Larkin, 421 U. S. 35, 47 (1975)). The operative

inquiry is objective: whether, “considering all the circumstances alleged,” Rippo, 580 U. S., at ___ (slip op., at 3), “the

average judge in [the same] position is likely to be neutral, 

or whether there is an unconstitutional potential for bias,” 

Williams v. Pennsylvania, 579 U. S. ___, ___ (2016) (slip op., 

at 6) (internal quotation marks omitted). This Court has 

“not set forth a specific test” or required recusal as a matter

of course when a judge has had prior involvement with a

defendant in his role as a prosecutor. Cf. id., at ___ (slip 

op., at 5). Nor has it found that “opinions formed by the 

judge on the basis of facts introduced or events occurring in

the course of . . . prior proceedings” constitute a basis for 

recusal in the ordinary case. Liteky v. United States, 510 
 

Statement of SOTOMAYOR, J. 

Cite as: 589 U. S. ____ (2019) 3 

Statement of SOTOMAYOR, J. 

U. S. 540, 555 (1994). Indeed, “it may be necessary and prudent to permit judges to preside over successive causes involving the same parties or issues.” Id., at 562 (Kennedy,

J., concurring). 

At the same time, the Court has acknowledged that 

“[a]llowing a decisionmaker to review and evaluate his own

prior decisions raises problems,” Withrow, 421 U. S., at 58, 

n. 25, perhaps because of the risk that a judge might “‘be so 

psychologically wedded to his or her previous position’” that 

he or she will “‘consciously or unconsciously avoid the appearance of having erred or changed position.’” Williams, 

579 U. S., at ___ (slip op., at 7) (quoting Withrow, 421 U. S., 

at 57). And it has warned that a judge’s “personal

knowledge and impression” of a case may sometimes outweigh the parties’ arguments. In re Murchison, 349 U. S. 

133, 138 (1955).

The allegations of bias presented to the Arkansas Supreme Court are concerning. But they are complicated by 

the fact that Isom did not raise the issue of Judge Pope’s 

prior involvement in his prosecutions, either at his capital 

trial or for nearly 15 years thereafter during his postconviction proceedings. Although the Arkansas Supreme Court 

did not base its recusal decision on this point, it is a consideration in evaluating whether there was an “unconstitutional potential for bias” in this case sufficient to warrant

the grant of certiorari. Williams, 579 U. S., at ___ (slip op.,

at 6) (internal quotation marks omitted). I therefore do not 

dissent from the denial of certiorari. I write, however, to 

encourage vigilance about the risk of bias that may arise 

when trial judges peculiarly familiar with a party sit in

judgment of themselves. The Due Process Clause’s guarantee of a neutral decisionmaker will mean little if this form 

of partiality is overlooked or underestimated.