The Supreme Court’s decision to hear a challenge to the health care law is renewing calls for recusal, described here and here and here. Some, mainly Democrats, charge that Justice Thomas (and his wife) have been too close to some of the law’s strongest critics. Others, mainly Republicans, charge that as solicitor general Justice Kagan may have had even a limited role as the administration crafted the law’s defense. There are no signs that either justice will sit out the case.
These recusal demands are mostly tactics to try to influence who decides the case or delegitimize the decision, but they reflect a growing debate over whether the justices’ ethics need more regulation to avoid conflicts of interest, or their appearance. With Gallup reporting the Court’s approval rating at 46 percent, second lowest since 2000, it’s a debate worth having.
The problem is not that federal judicial ethics provisions only apply to lower federal court judges— a common but erroneous claim. The problem—unsolved so far—is creating mechanisms to regulate the justices’ behavior that don’t create more problems than they might solve. Some proposals, for example, would suck other federal judges into partisan battles over Supreme Court recusals. In this short piece I try to summarize the principal sources of federal judicial ethics regulations and their relation to the justices—about which confusion abounds—analyze the possible impact of proposals to tighten ethical constraints on them, and comment on what the justices themselves might do.
The disqualification statute binds federal judges and justices alike, as do several ethics-in-government law provisions, including a financial disclosure requirement. The United States Judicial Conference directs its advisory Code of Conduct to judges, but at least some justices have said they also seek its guidance. The Judicial Conduct Act provides for the disposition of complaints about all federal judges except the justices; the Act, contrary to what many assume, is not simply a Code of Conduct enforcement mechanism.
Agencies in the judiciary apply these provisions: the courts in their judicial capacity; the Judicial Conference—26 circuit and district judges, chaired by the chief justice—which provides administrative direction to federal courts other than the Supreme Court; and the judicial councils in the twelve regional circuits.
This statute directs “[a]ny justice [or] judge . . . [to] disqualify himself [sic] in any proceeding in which his impartiality might reasonably be questioned,” and in specific, listed situations—such as owning even one share of stock in a party to the litigation. Recusal may come on motion of one of the parties or, even without a motion, when the judge or justice learns of a conflict.
Enforcement is through appellate review by the courts, in their judicial capacity. Litigants sometimes ask judges to recuse themselves at the outset of a case and might seek a mandamus order from a higher court if the judge declines. Or, litigants who lost a case may ask an appellate court to vacate the decision, claiming that the judge sat on the case despite a recusal-requiring conflict of interest.
But the appellate process doesn’t work as to Supreme Court justices because there’s no higher court to hear the appeal. A bill introduced last March would tell the Judicial Conference to create such a court—of sitting or retired judges or justices—to hear appeals from unsuccessful recusal motions and “decide whether the justice . . . should be so disqualified.” (HR 862, introduced in March, has 32 sponsors and cosponsors; 43 members have called for House Judiciary Committee hearings.)
Such a court of lower court judges would most likely violate the Constitution’s “one Supreme Court” mandate. Some have argued that a justices-only court would not. Chief Justice Hughes, however, in challenging FDR’s 1937 proposal to add justices to the Court, objected to the idea that the Court could sit in divisions if the extra justices made it too large to sit as a single body. The “Constitution,” he said, “does not appear to authorize two or more Supreme Courts or two or more parts of a Supreme Court functioning in effect as separate courts.” Hughes took flak for issuing an advisory opinion, but his warning has relevance to HR862’s proposed court.
More important, consider the practical problems were HR 862’s court to survive a constitutional challenge: In the first place, only parties to a litigation may move for a recusal, and Supreme Court litigants rarely do. (There have apparently been no motions requesting recusals in the health care case.) So the bill would not produce much action to solve whatever problems worry proponents.
But when a party moved for recusal and the justice declined, the HR 862 court would have to balance the motion against what some see as a judge’s “duty to sit,” discussed briefly here. Because a recused justice cannot be replaced by another judge, the prospects increase for a four-four decision, which would leave the matter at issue without a national resolution. It’s one thing for the justices to balance those considerations, but quite another for lower court judges on the HR 862 court to do it for them. And, finally, suppose a party sought recusal and the HR 862 court denied an appeal when a justice declined to do so, but, after the decision, additional evidence of a possible conflict emerged. Could the party renew the recusal motion before the special court, trying to get the decision vacated and, in the process, adding a new complication to constitutional adjudication?
Limitations on Outside Income, Employment, and Gifts
The Ethics in Government Act limits the outside income and employment of those whom the Act covers (including the justices), as well as the gifts they may accept. Congress authorized the Judicial Conference to issue implementing regulations for those in the judicial branch (available at the links above), and the Conference has delegated to the Chief Justice its authority to issue such regulations for the Court. Common Cause paraphrases a letter from a Court official stating that the justices have agreed by resolution to abide by the Conference regulations.
When Justices Breyer and Scalia testified at recent Senate Judiciary Committee hearing on “the role of judges,” however, a senator said the justices and Court employees are the only federal workers “who are exempt from the[ ] restrictions” on “receiving certain gifts and outside income under the Ethics Reform Act of 1989” and asked should “the Supreme Court . . . be required by law to follow the same financial restrictions as everyone else in government.” Rather than point out the error in the question, Justice Breyer instead described the justices’ compliance with a different statute, the financial disclosure law.
An Ethics in Government Act provision requires all high-salaried government employees to file annual financial reports. Justices and judges file them with a Judicial Conference committee (apparently the only instance of the Conference’s exercising administrative jurisdiction over the justices). The statute also directs the report-receiving agencies to refer to the attorney general anyone whom they have “reasonable cause to believe has … willfully failed to file information required to be reported.” The attorney general may initiate a civil action, seeking a civil penalty.
Common Cause and the Alliance for Justice in September petitioned the Conference to investigate whether to refer Justice Thomas for his since-corrected failure to report his wife’s well-known employment by conservative policy groups, and his possible error in not reporting certain travel expenses. Some House Democrats made the same request after the administration asked the Court to take up the health care law.
The Conference will likely conclude that even though the disclosure forms are not very complicated for those with no or modest investments (I know from my own experience), honest mistakes do occur, which fall short of the statute’s “willfully failed” standard.
Consider, though, the precedent a referral would create. Encouraging a group of lower court judges to refer a justice to the attorney general for civil prosecution creates the potential for sucking them into the partisan skirmishes over the Court. And the attorney general hardly needs the headache of deciding whether to pursue a civil action against a justice.
The Judicial Conference’s Code of Conduct, in the Code’s words, “applies to” judges on courts in the Conference’s administrative ambit, which doesn’t include the Supreme Court. However, Justice Kennedy told a House appropriations subcommittee hearing that the Code “appl[ies] to the justices in the sense that . . . by resolution we’ve agreed to be bound by them.” It’s unclear, however, whether the justices actually adopted such a resolution, or whether some or all of them simply “go to those volumes”, as Justice Breyer said he does, “[w]hen I find a difficult question.” As noted earlier, Common Cause has said a Court official told it that the resolution at issue involves not the Code but instead the Conference regulations that implement some of the ethics in government act provisions for lower court judges.
In any event critics say that “voluntary compliance . . . isn’t enough.” The justices, editorialized the New York Times, “must adopt the rigorous code of conduct that applies to all other parts of the federal judiciary.” But “applies to” as the Code uses the phrase, doesn’t mean “binds,” the verb commonly used by editorial writers and others in describing the Code. The Code says that it “provide[s] guidance to judges;” the Conference’s Codes of Conduct Committee chair said that the Code is “advisory and aspirational”. Nevertheless, HR862 (see above) would have the Code “apply to the justices… to the same extent as [it] applies to circuit and district judges.” The bill’s sponsors are apparently unaware that it would make the justices’ compliance what it is now—voluntary.
And the Code isn’t “rigorous.” It says itself that many of its provisions “are necessarily cast in general terms.” For example, it tells judges to “discourage a party from requiring the judge to testify as a character witness except in unusual circumstances when the demands of justice require,” but it can’t spell out how much “discouraging” is sufficient or when the “demands of justice” require an exception.
Judges do, though, look to the Code for guidance—almost all judges want to do the right thing, and the right thing is not always obvious. The Codes of Conduct Committee provides judges advisory opinions on whether a contemplated action would be consistent with the Code. And, Justice Kennedy told the budget hearing, “We can ask for advice from the committee …. And we do ask for that.”
This law authorizes “[a]ny person” to file a complaint alleging that a federal judge—but not a justice—“has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts.” Chief circuit judges dismiss most complaints as unsubstantiated or rearguing the merits of a case; the circuit judicial councils decide the handful that remain (with right of appeal to the Conference).
Enforcing the Code of Conduct is not the Act’s principal purpose. The Conference’s implementing rules say that while the Code may be “informative” and some activities covered by the Code “may constitute misconduct,” “determining what constitutes misconduct under the statute is the province” of the councils, subject to the Act and the Conference’s rules.
Nonetheless, HR 862 would direct the Conference to investigate “complaints . . . that a justice . . . has violated the Code of Conduct,” and to take “appropriate” action, using procedures “modeled after” the Judicial Conduct Act. Thus, were Congress to enact HR 862, the federal judiciary’s disciplinary mechanisms would have two overlapping standards: the “conduct prejudicial” standard as the councils interpret it for lower-court judges and, the Code of Conduct as the Conference interprets it for the justices.
Apart from that problem, consider the impracticality of having lower court judges decide what behavior by justices isn’t acceptable and what to do about it. The Judicial Conduct Act authorizes councils to suspend a judge’s case assignments. A Conference order telling a justice to sit out a few cases could create a constitutional crisis.
Given the Supreme Court’s visibility, and use of ethics charges to try to influence or delegitimize decisions, the Conference likely would be flooded with complaints, almost none of them meritorious. The high dismissal rate would breed more cynicism, and perhaps stoke unjustified legislative antagonism. And, while it’s highly unlikely that lower court judges would take any action against members of the Supreme Court—why pull those judges into partisan recusal battles over the Supreme Court?
What Can the Supreme Court Do?
The absence of formal review mechanisms for justices’ ethical decisions is a necessary imperfection in the system. The frustration behind recent proposals to establish such mechanisms is understandable, but those proposals would likely create more problems than they would solve.
The states use judicial conduct or performance commissions (judges are in the minority in most of them) to hear some complaints about state judges, including state supreme court members. There has been little interest in that at the federal level, just as there has been little interest in having federal judges stand for election. The states, more than the federal system, generally tip the judicial independence-accountability balance more toward accountability. Since the framing of the Constitution, the federal system has tipped the balance more toward independence, but that doesn’t deny the importance of accountability.
We rely on the justices to make decisions about their ethical matters in part because the buck has to stop somewhere and in part because we trust them to make those decisions in good faith. That doesn’t mean every decision a justice makes is beyond legitimate criticism or that their decisions never merit an explanation. The Code of Conduct soundly advises judges, and by extension justices, that they “must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.” Several suggestions:
- More transparency: When Justice Scalia explained in a 2004 memorandum opinion why his hunting trip with Vice President Cheney did not require recusal in a case involving the Vice President, many responded that he was right but asked why it took almost a month to respond to the recusal motion, which was preceded by considerable press commentary. HR862’s requirement that justices disclose the reason for a recusal or a failure to recuse is worth considering.
Even if recusal calls—in actual motions or more commonly in the press— are often tactics to try to shape a decision, it would serve the interests of transparency and foster trust in the Court if justices were to explain more often than they do now why non-frivolous conflict of interest allegations don’t outweigh the duty to sit—if they don’t.
- The justices could adopt and release a formal set of standards to guide—not control—whether recusal is warranted in any particular case and describe any mechanisms, even if informal, for advising colleagues about recusal. (The Court released some time ago a statement of recusal policy for cases in which relatives were attorneys.)
- If the Court has adopted resolutions pursuant to the delegations of regulatory authority under the various ethics acts, or concerning the Code of Conduct, why can’t they be made public?
- It’s likely that the justices will continue to get questions about ethics regulations at appropriations and other legislative hearings, making it important to master the admittedly arcane web of statutes and policies that govern and guide them.
Few believe the activities currently being cited as grounds for recusals in the health care case will have any influences on any justice’s vote, but appearances matter. Recusal tactics may be inevitable when the courts are front-and-center in disputes over contentious policy issues. The justices should take what steps they can to avoid making things worse.
 §§1020.50(b) and 620.65(a) of the respective regulations at the links above.
 See the commentary to Rule 3 at the link above.
Thanks to Professor Arthur Hellman of the University of Pittsburgh School of Law for helpful comments on an earlier draft, even as he has a somewhat different take on some of these matters than I do.
President-elect Bolsonaro has embraced tough-on-crime measures that egregiously violate basic human rights and eviscerate the rule of law. Responding to Brazil’s 63,880 homicides in 2017, Bolsonaro calls for increasing protection for police officers who kill alleged criminals and arming citizens. He calls for further militarizing urban policing, reducing the age of criminal liability from 18 to 16, reinstating the death penalty, authorizing torture in interrogations and imprisoning more people... Brazil’s police are already notorious for being one of the world’s deadliest in the use of force. In many favelas, Brazil’s retired and current police officers operate illegal militias that extort and control local communities, murdering those who oppose them and engaging in warfare with Brazil’s highly-violent gangs and in social cleansing. Bolsonaro is simply threatening to turn the rest of the police into state-sanctioned thugs.