SCOTUS Justices Should Not Get the Last Word on Impartiality

Amidst the debate about whether U.S. Supreme Court Justice Clarence Thomas should have recused himself from the prior Jan. 6 cases, as well as from those likely to arise in the future, it is essential to understand the gaps in the law, and then to provide a solution that has a reasonable chance of at least ameliorating the real problem: Supreme Court justices alone having the power to decide whether to refuse to step aside from cases in which their impartiality can be reasonably questioned.

While it is true that Supreme Court justices are not bound by the same code of judicial conduct to which all other federal judges must adhere, they are bound by a federal statute: 28 U.S.C. §455. Under that provision, any justice “shall disqualify” themselves in “any proceeding” in which their “impartiality might reasonably be questioned.”

No one doubts that this is the governing law. The question being fiercely debated is should the activities of Virginia Thomas, the wife of Clarence Thomas, have caused Thomas to disqualify himself when former president Donald Trump sought to prevent the National Archives from turning over various White House records to the House Select Committee that is investigating Jan. 6?

An Issue Not Going Away

Whatever the answer should be, it is wholly academic because the case has been resolved and the records turned over. However, the problem will not go away because there are likely to be more Jan. 6 cases before the Supreme Court, and the issue of whether Thomas should sit is likely to come back, but next time with a motion formally asking him to recuse himself.

At that point, the problem will not be with Section 455, but with the court’s practice of allowing each justice to decide individually whether to hear a case.

In most instances of possible recusal, the justices will act on their own, without a formal request, and in many cases, including where they own stock in one of the parties to the case, the justice will not participate because a specific part of Section 455 prevents all judges from hearing a cases in which the judge has a financial interest in a party, including “ownership,” however “small.”

But when a justice refuses to step aside, the court’s current practice means that a litigant has no recourse. If any other federal judge concluded that they could hear a case despite reasonable questions as to their impartiality, their decision at least can be appealed to a higher court. That is not true for Supreme Court justices, even though there is no law or even a rule that precludes further review.

Contrary to Fundamental Tenets of Due Process

This imbalance of power allows Supreme Court justices to act contrary to one of the fundamental tenets of due process that no person should be a judge in their own case.

Not only is a justice’s decision not appealable to the full court, but the justice has the power to write a lengthy opinion chastising the party urging recusal and its attorney. That is what happened to me in 2004 when I made a motion asking Justice Antonin Scalia to recuse himself from the Sierra Club’s case against Vice President Dick Cheney because the justice went duck hunting with Cheney while the case was before the court.

I do not know whether the full court would have agreed with Scalia, or indeed whether he would have recused himself rather than have his colleagues pass on the recusal request, because the court’s practice gave Scalia the last word justifying his refusal to recuse that ran over 20 pages.

Jackson Agrees to Recuse

In March we saw a different example of why a justice, or in this case a would-be justice, should not be in a position to decide recusal questions with no oversight. During her confirmation hearing, Judge Ketanji Brown Jackson was asked whether, because she was a member of Harvard’s Board of Overseers, she would sit on Harvard’s affirmative action case which will be heard by the court next fall.

She responded, properly in my view, that she would not. That was probably the only answer she could have given if she wanted to be confirmed, but if the question did not arise until she was a member of the court, she could have decided the other way, and there would have been no recourse against her short of impeachment.

The justices created this no-review practice, and they can surely change it. That would be the best result, but if they do not, Congress should amend section 455 to provide that if a justice denies a motion to recuse, the moving party has a right to appeal that decision to the full court, with the justice whose recusal is sought not being permitted to sit on that appeal. This is how all the other federal judges are treated, and it’s the fairest path to ensuring that Supreme Court justices don’t get to have the last word on their own ability to gauge their impartiality.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Alan B. Morrison is an associate dean at George Washington Law School where he teaches civil procedure and constitutional law.