A DISCUSSION OF LAW AND JOURNALISM

A Solution to the Problem of Supreme Court Recusals

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By Trevor Timm

On March 2, in just one of a series of recent controversies over judicial recusals, Fox News anchor Megyn Kelly and New York Congressman Anthony Weiner got into a heated argument over whether Justice Clarence Thomas should be allowed to participate in the inevitable Supreme Court case involving the health care bill.

Rep. Weiner accused Ginny Thomas, Justice Thomas’ wife, of having “received more than $700,000 from organizations whose existence is based on making sure the health care bill is ruled unconstitutional.

“And it [gets] even worse,” Rep. Weiner continued, “because Justice Thomas basically said he agrees with his wife…and under the clear letter of the law he must recuse himself.”

Ms. Kelly countered that, “What I’m told by Supreme Court expert contacts, and these folks are on the left I want to state for the record, is that having any sort of professional interest in a case as his wife arguably does, is not grounds for recusal. It’d be a different thing if Clarence Thomas himself had stock in some company…and this is not that.”

The conversation devolved from there. At one point, Ms. Kelly stated, “We have trust in our justices,” and Rep. Weiner interjected, “No, we have a law.” It turns out we may have neither.

The past year saw Justices Thomas, Scalia, Kagan, and Ginsberg each been involved in controversies (of varying degrees of seriousness) involving judicial recusal, so LASIS thought it time to investigate, what exactly determines whether a Supreme Court Justice must recuse him or her self?

In Justice Thomas’s case, the law at issue,28 U.S.C. 455—part of which Rep. Weiner read on air to Megyn Kelly—says:

“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This includes when he “knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”

The statute goes on to define “financial interest” as “ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party.”

As PolitiFactpointed out, law professors are split on whether Justice Thomas violated the “clear letter of the law” as Rep. Weiner alleges, in part because it’s unclear whether lobbying for outside interest groups makes Ms. Thomas an “active participant in the affairs of the party.”

Under the law then, Justice Thomas may be permitted to participate in a case involving the health care law.  But does this make it right?  Would it be ethical?

Surprisingly, Supreme Court Justices are not bound by the ethical rules all other federal judges are. As a bipartisan group of law professors proposing new rules for Supreme Court recusals recently explained, “While all other federal judges are required to abide by the Code of Conduct, and are subject to investigation and sanctions for failure to do so, Supreme Court justices look to the Code for mere ‘guidance,’ and are not obligated to follow the Code’s rules.”

Further, even when28 U.S.C. 455, applies, it “does not subject [Supreme Court Justices] to an enforceable, transparent process governing recusal….On recusal motions, justices may sit in silent judgment of their own impartiality, with no opportunity for review, even though the standard to be applied is the appearance of bias, which by necessity depends on the views of others.”

Although “decisions of Supreme Court justices have the broadest impact, are frequently divisive, and often turn on the vote of a single justice,” Supreme Court justices are subject to the least amount of scrutiny of any federal judges. And given that it’s the highest court, there is no appeals process to challenge a justice’s decision.

Of all the current justices, Justice Scalia is the most familiar with recusal controversies. The advocacy group Walmart Watch has called on Justice Scalia to recuse himself in an upcoming Supreme Court case involving a gender bias claim levied against Walmart because his son, Eugene, is partner at a law firm and has previously represented the superstore.   Last year, liberal advocacy groups called for Justices Scalia and Thomas to be retroactively recused from last year’s landmark case Citizens United v. FCC, which overturned key parts of the McCain/Feingold campaign finance law, after it was revealed they both spoke at fundraisers for the conservative Koch Brothers, who actively campaigned for the winning side. Justice Scalia was also heavily criticized for not recusing himself from Cheney v. United States District Court for the District of Columbia, which involved a challenge to former Vice President Cheney’s energy task force, and which he decided (in favor of Mr. Cheney) just weeks after going duck hunting with the Vice President.

As the New York Times pointed out, if the Code of Conduct applied to the Supreme Court, specifically the rule about not letting others “convey the impression that they are in a special position to influence the judge,” Justice Scalia would have had to recuse himself from these cases.

If they were bound by it, the Code of Conduct would also make the justices think twice about appearing at partisan events, such as the Koch Brothers’ fundraisers, or Justice Ginsberg’s speaking engagements for groups who believe in freedom of choice.

With many ethical questions surrounding justices today, and so little legal or ethical clarity, LASIS strongly endorses the bipartisan group of law professor’s recommendations:

1.    Apply the Code of Conduct for United States Judges to Supreme Court justices;

2.    Establish a set of procedures to enforce the Code’s standards as applied to Supreme Court justices;

3.    Require a written opinion when a Supreme Court justice denies a motion to recuse; and

4.    Determine a procedure, or require the Court to do so, that provides for review of a decision by a Supreme Court justice not to recuse himself or herself from a case pending before the Court.

The only way to preserve the integrity of the court is the ensure the justices live up to the same rules every other federal judge does, that the process is fair and transparent, and that their decisions can be scrutinized to prevent error. The Supreme Court has stated that, “Judicial integrity…is a state interest of the highest order.” It’s time for them to live up to that.

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3 Responses

  1. [...] New York Law School Blog has a post contributing to the on-going discussion about the ethics of recusal for the [...]

  2. J. Green says:

    The Supreme Court did major maneuvering during the formative years of this nation and positioned themselves as the most powerful branch in the government. Who else has the power to overturn law, broaden the law, or specify the law with such ease.

    The court should not be above the law, but they must maintain the latitude to do what they truly think is right despite the perceived conflicts of interest. We must trust them to do so until proven incapable.

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