Invisible Justices Part III: Recusal and Ethics

By Eric Segall

This third installment of my “Invisible Justices” blog posts concerns the rules (or more accurately lack thereof) governing the recusal and ethics practices of Supreme Court Justices. Our nine most important judges work under very different rules than all other federal judges.

A. Recusal

The law of recusal is essential for the rule of law to function effectively. We expect judges resolving cases to be impartial and unbiased. This age-old idea of judicial fairness can be traced all the way back to Roman times. Without fair judges, there can be no justice.

Federal law requires judges to recuse themselves from deciding cases when they (or immediate family members) have a financial or other personal interest in the case, when they have previously expressed their views on the outcome of the case, or when they previously served as a lawyer on the case in an official capacity. These requirements are a subset of the first section of the recusal statute, which is a catch-all provision requiring recusal where a judge’s “impartiality might be questioned” by a reasonable observer.

If a lower court judges refuses a request to recuse, that denial can of course eventually be appealed to a higher court. Whether a Supreme Court Justice should recuse from a case, however, is within the discretion of that particular justice with no required review of that decision by anyone else. Additionally, as a matter of course, the Justices almost always recuse themselves (or refuse to do so) without any written explanation of the decision.

For example, on January 10, 2014, the Supreme Court announced that Justice Samuel Alito was recused from an important case involving new television technologies. This information came in the form of a simple statement alongside the granting of the writ of certiorari that stated: “Justice Alito took no part in the consideration or decision of this petition.”

No reasons were given but the implications for the large television networks which brought and lost the suit in the lower courts were significant because, with Alito recused, a four-to-four tie would have meant the lower court decision would be upheld. Although officially there was no way to know why Alito recused himself, the best guess was that he owned stock in one or more of the companies involved in the case.

On April 16, 2014, however, the Supreme Court announced in a routine entry on its docket that “Justice Alito is no longer recused in this case.” Again, Justice Alito provided no reason for this decision. The speculation was that he had sold the stock that he likely held in one or more of the companies. This change had significant implications for the case because now a four-to-four tie vote was no longer possible.

We never learned why Justice Alito first recused himself in the case and then all of a sudden didn’t, but he should have explained his change of heart. If he had a sincere, neutral desire to make sure a full Court could hear the case that would be a legitimate reason, but what if the change was prompted by his desire to make sure one of the parties in the case would prevail? That motivation, while highly unlikely, would be inappropriate.

Professor Amanda Frost has noted that the Court’s recusal process is deeply flawed because the process: (1) does not provide for an adversarial hearing; (2) does not implicate a known body of written case law because the Justices almost never provide reasons for their decisions; and (3) provides no formal appeal of the decision to other judges. All of the usual and important protections and safeguards built into the normal litigation process are simply missing from the Justices’ recusal disputes, resulting in a significant lack of transparency. Professor Louis Virelli has written a new book on recusal and the Court, and he will be speaking at the symposium.

B. Ethics

Congress has passed a comprehensive set of ethical rules governing the off-the-bench activities of lower federal court judges. These rules prohibit judges from engaging in political activity,  accepting certain gifts, and being the keynote speaker or guest of honor at dinners and receptions for political organizations.

In his 2011 year-end report, Chief Justice Roberts made it crystal clear that the Justices are not bound by these rules (or any other ethical guidelines). He argued that, because Article III of the Constitution requires that there “shall” be one Supreme Court, but that Congress may “from time to time” create lower federal courts, no body other than the Court itself can make binding rules for the Justices. He also said that the Justices have voluntarily agreed (by internal not-public memoranda) to follow the financial disclosure and gift regulations in the rules, but that the rest of the Code, including the sections about public appearances, are only a “starting point and a key source of guidance for the Justices.”

The Justices’ decision not to be bound by the same rules governing lower court judges has led to a number of controversies. For example, Justices Scalia, Thomas, Roberts and Alito regularly participate in numerous events for conservative organizations such as the Federalist Society while Justices Breyer, Sotomayor, and Ginsburg have all been featured speakers at the liberal American Constitutional Society (of which I am a member), obviously helping those organizations raise funds (perhaps indirectly) for their many causes. In both January 2007 and January 2008, Justices Scalia and Thomas attended meetings sponsored by the politically active Koch brothers at an expensive resort in Southern California. 

There may be nothing ethically improper about the Justices lending their credibility to these outside-of-academia events sponsored by organizations with decidedly partisan and political bents. But shouldn’t there be some binding written obligations on the Justices’ off-the-bench activities? Even if Chief Justice Roberts is correct that Congress cannot constitutionally bind the Justices as it does lower federal court judges, the Justices certainly have the power to promulgate public rules for themselves that they could commit to follow.

Over the last few years, over one-hundred public interest organizations (including Fix the Court, whose director will be at the symposium) have formally asked that the Court fully embrace the ethical rules binding on all other federal judges. There are also bills pending in Congress to require a binding code of ethics for the Court. If anything, the nine Justices should be bound by more detailed and tougher ethical guidelines than lower court judges who number in the hundreds and whose political influence is less than that of the Justices. As I wrote in the Los Angeles Times shortly after Chief Justice Roberts issued his 2011 report asking the American people to simply trust the Justices to act ethically: “this request for blind allegiance and judicial silence smacks of hubris.” The American people deserve better.