Who Judges the Justices?

The issue goes beyond Clarence Thomas and his wife.

Who Judges the Justices?

Recent stories in the Washington Post, the New York Times, and the New Yorker about Associate Justice Clarence Thomas and his wife, Ginni’s, political activities raise a serious question as yet unanswered. That’s because the Supreme Court’s current ethics rules have nothing to do with a justice’s wife’s right to do political work. What she does is up to her and her standards.

But Justice Thomas’ standards cannot be those of the marketplace given that he considers his relationship with his wife’s work integral to his. “How do you run with one leg? It would be impossible. You can’t,” he told a public audience. And “being a justice would be impossible without you” is something he once said about Ginni.

Sweet comments but an outrageous standard for a Supreme Court justice.

This matter interests me in part because my most recent novel, Recusal, deals in a fictional way with some of the very real issues now playing out in the news. According to Federal Law 28 U.S.C. § 455(a)-(b)(1) (2012), a justice must recuse himself (or herself, though the law leaves “her” out) where his/her “impartiality might reasonably be questioned” and when he/she “has a personal bias or prejudice concerning a party…[or] concerning the proceeding.”

Bottom line: The law leaves it to the justice whether or not to disqualify herself or himself for bias or prejudice. There is no official definition of bias or prejudice, however, nor any procedure in place to appeal a justice’s personal decisions on such matters. Of all courts, the Supreme Court must not only dispense actual justice but also appear to be doing so in an unbiased manner if its decisions are to have credibility.

This idea is not new. Lord Coke famously wrote in 1628 that “no man can be a judge in his own case.” Roman law, Jewish law, Justinian law, and the Maimonides Code all agree that partiality or prejudice would taint a judge’s work. In fact, the need for recusal comes up regularly when a justice has stock in a company appearing before the Supreme Court (Justices Samuel Alito and Sandra Day O’Connor occasionally recused themselves for this reason.)

Another instance calling for recusal is when a justice has been involved in earlier roles in a particular case, such as happened with Justice Thurgood Marshall and, more recently, Justice Elena Kagan. Observers even joked that Marshall — after he recused himself 57 times because of previous work on the court of appeals — was in quasi-retirement during his first term.

Former Solicitor General Kagan recused herself from 28 of 78 cases in her first year on the Supreme Court because of earlier work. And Justice Sonia Sotomayor disqualified herself from an April 2020 case when she realized her friendship with one of the people on the case might be perceived as a potential conflict.

When the Supreme Court accepted the celebrated Nixon tapes appeal, Chief Justice William Rehnquist recused himself because of his history with the embattled president; he thought doing so was necessary in order to uphold Article III of the Constitution guaranteeing the court’s independence. The Supreme Court, minus Rehnquist, upheld the release of the tapes 8-0.

S. 455 deals not only with bias but also the appearance of impartiality. At her confirmation hearing, Justice Amy Coney Barrett spoke about the subject vis-à-vis her role as an appellate judge, saying she would not order an execution in a capital-punishment case for religious reasons nor sit on a case her husband had a part in. She would disqualify herself in such cases sua sponte, or in response to a motion to recuse. The 7th Circuit (her home then) interprets S. 455 to apply if the facts alleged “are definite and particular to convince a reasonable person that bias exists.”

Here’s how it works now and how it ought to work going forward. Today, a justice may recuse themselves if they think their participation would compromise or appear to compromise their judiciousness in a given case. Yet there is a valid policy reason for this to be done infrequently. A nine-member Supreme Court is preferable because eight-member decisions may result in a tie, which has happened in 6 percent of cases (or 567 cases) since the recusal law was passed in 1974.

Yet when a justice is asked to recuse, it is patently clear they should not get to decide for themselves — as is the custom now — whether to comply. This should apply to Justice Thomas and ALL the justices.

Congress could write a new law setting out a specific procedure for justices’ decisions about recusal, one that mandates those decisions be recorded and reviewed independently. The reviewer might be a panel of federal appellate judges, a retired justice, or even a respected scholarly ombudsman.

A wiser route still would be for the chief justice and his colleagues on the Supreme Court to deal with the issue themselves and bring a new procedure to Congress suggesting it do legislatively what the court might do independently. This would assure collegiality between the legislative and judicial branches on this touchy issue.

According to an article in the New Yorker, David Dinielli, while lecturing at Yale Law School, reminded his audience that “how [the Supreme Court] behaves to command respect” is a standard that “once the veneer cracks, it’s very hard to get it back.”

It’s a sad fact that the current rule governing the Supreme Court’s conflicts of interest is unclear and inadequate. The court, of all agencies of government, ought to realize this. Instead, it has been looking the other way as if it bears no responsibility for the conduct of its members.

Ronald Goldfarb is a Washington, DC, attorney and author of 16 books whose most recent novel, Recusal, written under his pseudonym for fiction, R.L. Sommer, was published by Turner last May.

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