The Desperate Need for Binding Recusal Rules for Supreme Court Justices
One of the oldest and most venerable legal rules is that no person should be the judge in her own case. When a party in any federal court except SCOTUS files a motion for recusal, the judge in question makes the first pass but then the moving party can appeal to different judges on a higher court (or en banc review in the courts of appeals) with Supreme Court review a possibility as the last stop.
But when a recusal controversary involves a Supreme Court justice, there is no review, no appeal, no process, nothing. The justice in question decides on her own whether she should or should not hear a case, and there is no appeal from that decision. But even worse, there is no obligation for the justice to provide reasons for either recusing or not. According to Gabe Roth, Director of Fix the Court, in the entire history of the Supreme Court, there have been only four written responses to recusal issues by a sitting justice. There should have been many more in light of the many cases where there were strong arguments a justice should recuse. A summary of recent cases highlighting the recusal problem can be found here.
All of which brings us to Justice Samuel Alito. Last Friday, he made a public response to a letter from Senator Dick Durbin to Chief Justice John Roberts asking him to ensure that Justice Alito recuse in an upcoming case (discussed below), and a complaint from Senator Whitehouse that Alito improperly commented on pending ethics legislation to the Wall Street Journal in a written interview he gave to a reporter and attorney David Rivkin. Rivkin is counsel of record in Moore v. United State, a huge tax case the Court will hear this term. During that WSJ interview, the issue of Congress's power to require the Court to adopt a binding ethics code came up and Alito said the following: “[n]o provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”
Alito is wrong about Congress' lack of power to regulate the Court (see Article III's text and this Verdict column by Mike) but that is not the point of this essay. As to recusal in the Moore case, Senator Whitehouse also said the following:
Questions abound about the extent of private access Justice Alito has afforded Mr. Rivkin, who has appeared before the Court numerous times, particularly while Mr. Rivkin’s petition for a writ of certiorari was pending in Moore. Mr. Rivkin’s efforts in Moore have been publicly supported by the Wall Street Journal Editorial Board, which has approved three pieces written by or involving interviews with Justice Alito in four months.
Senator Durbin said the following about Alito and the Moore case:
While this case has been pending before the Court, Justice Alito twice sat for interviews with Mr. Rivkin, once in April and again in July. Mr. Rivkin’s access to Justice Alito and efforts to help Justice Alito air his personal grievances could cast doubt on Justice Alito’s ability to fairly discharge his duties in a case in which Mr. Rivkin represents one of the parties.
In his response, Justice Alito said the following:
When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate. The case in which he is involved was never mentioned; nor did we discuss any issue in that case either directly or indirectly. His involvement in the case was disclosed in the second article, and therefore readers could take that into account. There was nothing out of the ordinary about the interviews in question. Over the years, many Justices have participated in interviews with representatives of media entities that have frequently been parties in cases before the Court, including NPR, the New York Times, CBS, Fox, News, National Review, and ABC.
Mr. Roth of Fix the Court responded as follows:
Although I agree with Mr. Roth on this specific issue, there are reasonable arguments to be made on both sides. It is not an easy recusal question. But the larger point is that the Court has no written guidelines as to how justices should respond to recusal issues or even whether they have to respond at all, which is why there have only been four recusal memos ever written by a Supreme Court justice. As I have written before, the absence of written, binding guidelines on recusal at our nation's highest court is a national embarrassment.
Chief Justice Roberts has been an apologist for the lack of any binding recusal rules on the justices. In his 2011 year end report, Roberts argued that the justice are different from lower court judges because when a justice is recused there is no replacement, whereas when a lower court judge recuses, another judge can take her place. Roberts also said that there can be no review of a justice's decision not to recuse as a "consequence of the Constitution’s command that there be only 'one supreme Court.' The Justices serve on the Nation’s court of last resort."
There is nothing in the Constitution prohibiting Congress (or even better the Court) from creating a system of recusal where, if a justice recuses, either a retired justice or a court of appeals judge could take the place of the recused justice. As Mike has written about the retired justice proposal, "as long as Justices have only retired from active duty, rather than having resigned their commissions, neither Article III nor any other constitutional provision forbids them from serving on the Supreme Court."
The arguments in favor of lower court judges sitting on SCOTUS by designation may be harder to defend, but I do not think the requirement of one Supreme Court precludes Congress or the justices themselves from creating a plan to substitute for a recused justice a lower court judge. There would still only be one Supreme Court, just as there's only one First Circuit or Ninth Circuit but district court judges and retired Supreme Court justices sit by designation on the court of appeals on a regular basis. The dire need for transparent recusal rules at SCOTUS easily outweighs an overly formalistic interpretation of Article III.
The most persuasive argument supporting the idea that each justice gets to decide, as a final matter, whether to recuse is that any kind of review system could be used by the parties to a case to strategically remove a likely unsympathetic justice. However, the possible abuse of a power is not usually an argument against the exercise of that power. The same is true for recusal as a limit on judicial power. The potential abuse of recusal standards is not an argument against having real, enforceable rules regarding justice recusals.
Any system of recusal can in theory be abused by parties to a case but that potential should not stop the Court from trying. A justice who sits on a case he should not hear because of bias or prejudice, or even because of the appearance of impropriety, strains the rule of law to its breaking point. Additionally, court of appeals judges have the final say in 99% of the cases they hear, some of those cases are politically charged, but no one argues that court of appeals judges should be reluctant to recuse when they should because of the potential for abuse.
There are many ways to guard against recusal abuse at the Supreme Court. One idea would be a rule that, if a justice recuses, she is replaced by a retired justice or lower court judge who was appointed by a President of the same political party as the recused justice (or if party affiliation of a justice is unknown, a highly unlikely state of affairs, the political party of the nominating President).
Both in terms of form and substance, it is terrible that each sitting justice has the final say on all recusal motions and there is no review of that decision anywhere, anyplace, or anytime. There is no adversarial process, no requirement of reason giving, and no review of any recusal decisions. That lack of transparency is a real problem for public confidence in the Court and it does, in a sense, make a judge the judge in her own case, a serious rule of law problem.
No written set of rules and procedures for SCOTUS recusals will be perfect but not having any enforceable rules or standards is much worse. If the Supreme Court refuses to adopt its own binding recusal rules and procedures, Congress can use its spending power to entice the justices to do so. The status quo, however, is completely unacceptable.