Supreme Court Digs in on Recusal Practices Criticized as Opaque

The US Supreme Court‘s inaugural code of conduct does little to satisfy transparency advocates seeking a more open and uniform approach to recusals, a practice they view as opaque and long overdue for change.

The code, issued on Monday amid liberal pressure over alleged ethical lapses involving largesse and favorable treatment from billionaires, mainly codifies rules that all federal judges follow while adding what advocates say is a potential loophole for the justices.

While lower court judges can be replaced if they recuse, the Supreme Court code says the “loss of even one justice may undermine” its work and the administration of justice. Accordingly, the standard says the so-called “rule of necessity” that each justice has a duty to sit in on and decide each case “may override the rule of disqualification.”

“It puts a huge thumb on the scale of not recusing, even where there is a potential or actual conflict,” said Jennifer Ahearn, a senior counsel for the Brennan Center’s Judiciary Program.

Some ethics experts and progressives called for any code of conduct emerging from the court or Congress to address recusal.

The Supreme Court receives roughly 5,000 to 6,000 petitions seeking review annually, and nearly all are denied at an early stage. Each justice decides whether to hear a case or bow out, and they regularly note when they do so, although they’re not required to give reasons and rarely do.

Chief Justice John Roberts has said the justices may seek advice from the court’s legal office or consult their colleagues when weighing recusals, but otherwise they’ve called recusal a personal decision and have resisted calls to be more open about how they reach those decisions and why.

In the code of conduct—signed by all nine justices—Roberts said the court would assess whether it needs more resources to “perform initial and ongoing review of recusal and other ethics issues.” But there was little praise among those pushing for change.

“The court’s new code of conduct does not appear to contain any meaningful enforcement mechanism to hold justices accountable for any violations of the code. It also leaves a wide range of decisions up to the discretion for individual justices, including decisions on recusal from sitting on cases,” Senate Judiciary Committee Chair Dick Durbin (D-Ill.) said in floor remarks.

Rule of Necessity

Carrie Severino, president of the conservative Judicial Crisis Network, said the newly issued code just codifies what’s already being done at the court. The “recusal rules aren’t new and the rule of necessity isn’t either.”

Currently, the rules call for the justices to recuse when they have financial, professional, or personal conflicts. But the code says the recusal rules may need to give way to the “rule of necessity,” also known as the duty to sit.

Because the justices can’t be replaced and because people are largely familiar with the ways that particular members think about a particular legal issue, a rule that favors recusal would invite strategic calls for them to sit out, Severino said.

In emphasizing the rule of necessity, the conservative-led court cited a rare explanation from the late Justice Antonin Scalia regarding a hunting trip with then-Vice President Dick Cheney. Scalia ultimately did not recuse from the case.

“When hearing a case on the merits, the loss of one Justice is effectively the same as casting a vote against the petitioner,” the code said, citing Scalia. “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.”

A narrow recusal rule also prevents the court from coming to equally divided rulings, making them unable to decide an issue of great importance, Severino said.

Above and Beyond

Gabe Roth, executive director of the watchdog Fix the Court, said the rule of necessity has been over emphasized. It’s been “beaten beyond recognition,” Roth said.

Roth, who highlighted times when individual justices across the ideological spectrum have heard cases when he says they should’ve recused, notes that some important decisions have involved fewer than nine justices. So it’s not true that the justices have to sit in on every case, he said.

Moreover, the rule of necessity would appear to have the most force in disputes that are hotly contested, Roth said in noting the kinds of cases where it’s most important for the justices to be viewed as impartial.

Cardozo law professor Alex Reinert said a lot depends on how the rules are applied with no enforcement mechanism in the code of conduct to lean on.

The justices have long argued that allowing other federal judges or even another branch of government to oversee their recusal decisions would violate separation of powers.

The code doesn’t necessarily mean the justices can individually decide to disregard conflicts in favor of the rule of necessity, Reinert said. But it gives them that option, he said.

David Janovsky, a senior policy analyst at the independent watchdog the Project on Government Oversight, said the rules laid out in the code “gets recusal precisely backwards.”

If the justices are so indispensable, the answer isn’t to lower the recusal standard, Janovsky said. Rather, they should “go above and beyond to be above reproach.”