Judicial Ethics

The Bare Necessities

Let’s just blow past the usual excuses when I go this long without posting and jump right in instead. Ok? Great.

Today, the United States Supreme Court has adopted and released a Code of Judicial Ethics to which they say they will adhere. You can read the whole thing here.

Having written a few times in the past about the topic — and the need for ethics rules that would apply to the Court — I cannot now say that this is not a positive development. Most always I will agree that the perfect can be the enemy of the good.

This code is certainly not perfect though. Setting aside the simple logistics question of how this Code will be enforced (and by whom), the biggest imperfection in the Code on first reading is the creation of an entirely toothless standard for disqualification.

The Court does this in Canon 3.B. by undercutting all of the good work laying out when a Justice should be disqualified in (2) by enacting (3):

The rule of necessity may override the rule of disqualification.

This provision facially provides a mechanism for any Justice to say “Sorry, I know I should be disqualified because I have a personal bias against the appellant (or I know that my spouse has a financial interest in the outcome of the case) but I’m just too necessary to this process to be disqualified.”

And, lest you think I’m unfairly reading this provision, the Court makes plain that it means what it says about necessity and that, therefore, there is pretty much no way to view the disqualification provision as being meaningful at all in the Comment:

Canon 3B addresses the inherently judicial function of recusal. The
Justices follow the same general principles and statutory standards for recusal as other federal judges, including in the evaluation of motions to recuse made by parties. But the application of those principles can differ due to the effect on the Court’s processes and the administration of justice in the event that one or more Members must withdraw from a case. Lower courts can freely substitute one district or circuit judge for another. The Supreme Court consists of nine Members who sit together. The loss of even one Justice may undermine the “fruitful interchange of minds which is indispensable” to the Court’s decision-making process. See Dick v. New York Life Ins. Co., 359 U.S. 437, 459 (1959) (Frankfurter, J., dissenting). Recusal can have a “distorting effect upon the certiorari process, requiring the petitioner to obtain (under our current practice) four votes out of eight instead of four out of nine.” S. Ct. Stmt. of Recusal Policy (Nov. 1, 1993). When hearing a case on the merits, the loss of one Justice is “effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.” Cheney v. United States Dist. Court for D.C., 541 U.S. 913, 916 (2004) (memorandum of Scalia, J.). And the absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue. See Microsoft Corp. v. United States, 530 U.S. 1301, 1303 (2000) (statement of Rehnquist, C.J.). In short, much can be lost when even one Justice does not participate in a particular case.

This Canon’s recusal provisions thus differ from those in the lower court Code in that they: restate the Justices’ 1993 Statement of Recusal Policy;
recognize the duty to sit and that the time-honored rule of necessity may
override the rule of disqualification, see United States v. Will, 449 U.S. 200,
217 (1980) (28 U.S.C. § 455 does not alter the rule of necessity); ABA Model Code of Judicial Conduct Rule 2.11 cmt. 3 (“The rule of necessity may override the rule of disqualification.”); and omit the remittal procedure of lower court Code Canon 3D. Canon 3B(2)(d) retains language from the lower court Code relating to known interests of third-degree relatives that might be substantially affected by the outcome of a proceeding. Because of the broad scope of the cases that come before the Supreme Court and the nationwide impact of its decisions, this provision should be construed narrowly. For example, a Justice who has school-age nieces and nephews need not recuse from a case involving student loans even though the disposition of that case could substantially affect the terms on which the Justice’s relatives would finance their higher education.

A decent question any reporter with access to the Court might want to ask – since this Code is intended to largely memorialize the things the Court already considered itself to have to comply with — is on how many instances has each Justice made the decision that the reason it would not recuse from a case was the rule of “necessity?” And do they have any records to keep track of such instances?