The Chief Justice on Ethics and Recusal
Our chapter on the judiciary discusses judicial ethics. The topic is in the news because some are arguing that Justices Thomas and Kagan should recuse themselves from the decision on the federal health care law. In his annual report on the federal judiciary, Chief Justice Roberts deals broadly with the underlying issues:
Since 1789, every federal judge has taken the same solemn oath to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and “to faithfully and impartially discharge and perform” the duties of judicial office. But for the first 130 years of the Nation’s existence, federal judges had no formal source for guidance on the broad array of ethical issues that might arise in the course of judicial service.
In 1922, he explains, Congress addressed this problem by creating the Judicial Conference of the United States, which in turn established a Code of Judicial Conduct.
The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.
Nevertheless, justices do consult the Code and other sources in weighing their ethical duties. Federal statutes are among these sources.
The governing statute, which is set out in Title 28, Section 455, of the United States Code, states, as a general principle, that a judge shall recuse in any case in which the judge’s impartiality might reasonably be questioned. That objective standard focuses the recusal inquiry on the perspective of a reasonable person who is knowledgeable about the legal process and familiar with the relevant facts. Section 455 also identifies a number of more specific circumstances when a judge must recuse.
The Supreme Court is different from other courts in one important respect.
Although a Justice’s process for considering recusal is similar to that of the lower court judges, the Justice must consider an important factor that is not present in the lower courts. Lower court judges can freely substitute for one another. If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place. But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.
Chief Justice Roberts closes by expressing confidence in his colleagues' ability to make the right decision about recusal.