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To Recuse or Not To Recuse, That is the Question

Carter Cunningham

Edited by Mac Kang, Jia Lin, Paras Patel, and Vedanth Ramabhadran


In light of recent controversies over alleged ethical violations by sitting Supreme Court justices, critics have increased their scrutiny over different ethical mechanisms, such as enforceable ethical standards, an internal investigative regulatory body, and systems that allow for judges’ disqualification from cases where judicial bias may exist. 

In recent years, numerous legislative attempts have aimed to impose an ethical code for the Supreme Court. In 2018, a bipartisan bill was brought by Republican Representative Darrell Issa of California that made it past the House Judiciary Committee but failed to become law. This bill, the Judiciary Reform, Organization and Operational Modernization (ROOM) Act of 2018, attempted to implement same-day audio streaming and require public reasons for recusal in the Supreme Court.  [1] In July 2023, Democratic Senator Shelton Whitehouse sponsored the Supreme Court Ethics, Recusal, and Transparency Act (S.359), which passed the Senate Judiciary Committee following amendments by Republican lawmakers concerning the condemnation of harassment of Justice Clarence Thomas. Despite committee approval, the bill only passed on an 11-10 vote along party lines and will find it nearly impossible to pass a split Senate and Republican-controlled House of Representatives. [2] Nevertheless, The contents of the bill provide a legal framework for what potential mechanisms to ensure ethics in the Supreme Court could look like. 

S.359 contains three major components that attempt to solve impropriety within the Court. The first component is the establishment of a code of conduct for justices and clerks as well as disclosure requirements for gifts, travel, and income they receive. A potential ethical code for the Supreme Court could be modeled after the existing Code of Conduct, created by the Judicial Conference and American Bar Association in 1973. [3] The Code of Conduct addresses five ethical governing issues: recusal, judicial integrity, impartiality, permissible extra-judicial activities, and guidance on judges’ performance. [4] The first issue, recusal, is the challenge against a judge to withdraw themselves from a case based on a conflict of interests or any reason for their lack of impartiality. Congress has demonstrated the necessary constitutional power to compel justices to recuse themselves according to 28 U.S. Code §455, which states that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” [5] 

One of the problems that arises with the creation of an ethical code is the challenge of implementing a mechanism that allows for the proper enforcement of these standards. One potential solution outlined by S.359 is the establishment of a procedure for individuals to file ethical complaints against justices and the adjudication of these complaints by a panel of circuit court judges. [6] Furthermore, the bill proposes requirements for audits and reporting mandates those filing amicus briefs in federal court to disclose the identities of individuals, organizations, and the financial contributors that prepared the brief. 

Another hurdle blocking legislation for the ethical regulation of the Supreme Court is the argument that these ethical systems cannot properly operate within the unique structure of the Supreme Court. In a 2011 report, Chief Justice Roberts outlined one of the problems with ethical standards using the example of recusal. Following the judicial norm set by Laird v. Tatum (1972) when Justice Rehnquist refused to recuse himself from the case despite allegations of ethical violations, the concept of a justice’s “duty to sit” has permeated the Court. [7] As Chief Justice Roberts states, given that “there [can] be only ‘one supreme Court,’” justices serve as final arbiters who cannot be replaced by another judge in the case of recusal. [8] Thus, justices feel compelled to sit in on cases even through allegations of ethical impropriety to ensure the comprehensive deliberation of the Supreme Court. 

Furthermore, the constitutional protection given to the Supreme Court is unimpeachable. The primary mechanism for Congress’ authority over the actions of the Supreme Court is simply the broad guideline that Congress must ensure justices are acting within “good behavior.” [9] This represents a challenge to reform how justices handle themselves in cases that require recusal because it can be difficult for Congress to legislate the Court when the justices enacting their “duty to sit” does not violate their acting in good behavior. While the Court can be constitutionally legislated by Congress, the practical enforcement cannot be managed without interfering with the duty of the Court. The current standard for the Supreme Court is that they are self-regulating and there is a high level of trust placed on justices to moderate their behavior according to their own judgment. For example, Chief Justice Roberts addressed the many ways that Justices evaluate if recusal is necessary. “They may also examine precedent and scholarly publications, seek advice from the Court’s Legal Office, consult colleagues, and even seek counsel from the Committee on Codes of Conduct.” [10] Robert’s argument makes sense considering there is no higher court to regulate the Supreme Court, however, it falls to scenarios where justices are wrong and refuse recusal despite overwhelming evidence that they should. Still, this normative behavior falls too many times within the good behavior that justices should conduct themselves with. Thus, while public trust in the Court may waiver when a justice sits on a case they are perceived as lacking impartiality on, the level of misconduct may not rise enough for Congress to take action. 

Ultimately, balancing the earnest need for transparency in the ethical practices of the Supreme Court with the deeply ingrained practice of justices relying on their own judgment and private advice to make decisions is the primary challenge in introducing enforceable ethical guidelines to the Supreme Court. Certain procedures, such as mandating the disclosure of identities and financial information for briefs presented to the Supreme Court or establishing a system to review complaints against justices, may seem relatively straightforward in the legislation of an ethical code. However, in cases where policy interrupts the ordinary function of the Supreme Court or interferes with the current structure of independently decision-making justices, significant difficulties arise in implementing such changes. Until fleshed-out mechanisms to enforce an ethical standard on the Supreme Court can be passed through the legislature, the future remains uncertain for any meaningful change. 

 

[1]House Judiciary Committee Approves Legislation to Improve Federal Court System | House Judiciary Committee Republicans, (2018), http://judiciary.house.gov/media/press-releases/house-judiciary-committee-approves-legislation-to-improve-federal-court-system (last visited Feb 13, 2024).

[2]Melissa Quinn, Senate Judiciary Committee Advances Supreme Court Ethics Bill amid Scrutiny of Justices’ Ties to GOP Donors - CBS News, (2023), https://www.cbsnews.com/news/supreme-court-ethics-bill-senate-judiciary-committee-clarence-thomas-harlan-crow/ (last visited Feb 13, 2024).

[3] Why the Supreme Court isn’t compelled to follow a conduct code | Constitution Center, National Constitution Center – constitutioncenter.org, https://constitutioncenter.org/blog/why-the-supreme-court-isnt-compelled-to-follow-a-conduct-code (last visited Feb 13, 2024).

[4]Building public confidence: how the Supreme Court can demonstrate its commitment to the highest ethical standards, CREW | Citizens for Responsibility and Ethics in Washington, https://www.citizensforethics.org/reports-investigations/crew-reports/building-public-confidence-how-the-supreme-court-can-demonstrate-its-commitment-to-the-highest-ethical-standards/ (last visited Feb 13, 2024).

[5] 28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge, LII / Legal Information Institute, https://www.law.cornell.edu/uscode/text/28/455 (last visited Feb 13, 2024).

[6] S. 359, Supreme Court Ethics, Recusal, and Transparency Act of 2023 | Congressional Budget Office, (2023), https://www.cbo.gov/publication/59519 (last visited Feb 13, 2024).

[7] Laird v. Tatum, 409 U.S. 824 (1972), Justia Law, https://supreme.justia.com/cases/federal/us/409/824/ (last visited Feb 13, 2024).

[8] 2011 Year-End Report on the Federal Judiciary .

[9]Article III, LII / Legal Information Institute, https://www.law.cornell.edu/constitution/articleiii (last visited Feb 13, 2024).

[10] 2011 Year-End Report on the Federal Judiciary .


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