S OTOMAYOR , J., dissenting 1 Cite as: 589 U. S. ____ (2019)

Statement of S OTOMAYOR , 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 J USTICE S OTOMAYOR respecting the denial of certiorari. Petitioner Kenneth Isom was thrice charged with bur

glary and theft offenses by Drew County, Arkansas, prose

cutor Sam Pope. Isom was acquitted on two of those occa

sions, but was convicted on the third. After Isom was granted parole three years into his sentence, Prosecutor Pope met with the Office of th e Governor to express his con

cern and to inquire whether Isom could somehow be re

turned 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 chal

lenge 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 S OTOMAYOR , J. 2 ISOM v. ARKANSAS

Statement of S OTOMAYOR , 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, con

cluding 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 sup

pressed. Id. , at 550. Justice Hart also considered it signif

icant that, after a state witness appeared to become con

fused 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 extend ed to the close, discretion

ary 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 circum

stances 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 intro duced or events occurring in the course of . . . prior proceedings” constitute a basis for recusal in the ordinary case. Liteky v. United States , 510Statement of S OTOMAYOR , J. 3 Cite as: 589 U. S. ____ (2019)

Statement of S OTOMAYOR , J.

U. S. 540, 555 (1994). Indeed, “it may be necessary and pru

dent to permit judges to preside over successive causes in

volving 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 ap

pearance 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 out

weigh the parties’ arguments. In re Murchison , 349 U. S. 133, 138 (1955). The allegations of bias presented to the Arkansas Su

preme 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 postconvic

tion proceedings. Although the Arkansas Supreme Court did not base its recusal decision on this point, it is a consid

eration in evaluating whether there was an “unconstitu

tional potential for bias” in th is 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 fa miliar with a party sit in judgment of themselves. The Due Process Clause’s guaran

tee of a neutral decisionmaker will mean little if this form of partiality is overlooked or underestimated.