Supreme Court Justices Can’t Agree on When They Should Recuse Themselves From Cases

From a Washington Post story by Robert Barnes and Ann E. Marimow headlined “Supreme Court justices discussed, but did not agree on, code of conduct”:

The Supreme Court has failed to reach consensus on an ethics code of conduct specific to the nine justices despite internal discussion dating back at least four years, according to people familiar with the matter.

It remains an active topic at the court, these people said, and the court’s legal counsel Ethan Torrey prepared a working document of issues for them to consider. There is no timeline for the justices to act, however. Those familiar with the matter spoke on the condition of anonymity to discuss the situation.

The inertia has frustrated critics, whose demands for reform have intensified. The court’s profile has only increased as a new majority has moved rapidly on a range of polarizing issues. That has also increased scrutiny on the justices, the activities of their spouses and when the court’s members should recuse themselves from cases.

Justice Clarence Thomas, whose wife Virginia “Ginni” Thomas took an active role in challenging the outcome of the 2020 presidential election while her husband considered cases on the subject, has become a particular focus.

This week, leaders of the American Bar Association joined those urging action, saying that “the absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.” The call was not motivated by “any particular conduct by any one or more current or former members of the Court,” the group said.

“This is a break-the-glass moment on Supreme Court ethics,” said Gabe Roth of the group Fix the Court, which has long advocated for greater accountability and transparency at the court. “I don’t think an ethics code is a panacea, but I think there is a perception that the justices are not taking their ethical responsibilities seriously enough.”

Although the justices say they voluntarily comply with the same ethical guidelines that apply to other federal judges, the lack of an ethics code has become a prominent complaint on Capitol Hill, where in 2019 Justice Elena Kagan told a congressional committee that Chief Justice John G. Roberts Jr. was “seriously” studying the issue. But a discussion among the justices failed to produce agreement, people familiar with the matter said.

Rep. Hank Johnson (D-Ga.), who sponsored legislation to create a code of conduct for the court, said Americans are becoming impatient. “I do not understand why there has not been a conclusion reached on this so-called study,” Johnson said. “It just seems like it has been quietly dropped, hoping the public will turn its attention to other matters and never come back to this issue.”

But in the past, the chief justice said he and his colleagues voluntarily comply with the same standards that govern other judges, including recusal from cases in which they or close family members might have a financial interest. Justices file annual financial disclosure forms, including reports on outside income, travel paid for by others and gifts. Those annual disclosure reports include stock ownership and notices of spousal employment.

Supreme Court justices, like other federal judges, are subject to a federal recusal statute that requires disqualification from “any proceeding in which his impartiality might reasonably be questioned.” But Roberts and other justices have said in the past that they cannot be bound by all of the rules that apply to lower court judges because of the unique role the Constitution assigns the Supreme Court as the ultimate decision-maker in the nation’s judiciary.

That raises issues about who would adjudicate ethics complaints that might be filed against the justices, they say, and complicates recusal decisions. Justices make their own calls about when to recuse, and no other judge is authorized to replace them.

Legal ethics experts say it is possible for the justices to create a code and that there is benefit in publicly pledging to comply with certain standards. A group of scholars last year urged the court to act on its own rather than allow Congress to prescribe a remedy that could raise separation of powers issues.

Steven Lubet, one of the signers and an emeritus law professor at Northwestern University, acknowledged there are serious questions about who would adjudicate complaints made against the justices. Nonetheless, he said the court underestimates the importance of the justices committing to greater transparency.

“The public would understand what the rules are that the court is following internally,” he said.

The court’s off-and-on consideration of such standards suggests at least some members believe there is a value as well.

Kagan and Justice Samuel A. Alito Jr. discussed the issue before a congressional committee in March 2019 that was considering the court’s budget request. Alito stressed during the hearing that justices attempt to conduct themselves according to judicial conduct codes and “in a manner that appears to the public that is fully ethical.” But he underscored the difficulties of simply complying with the code that governs lower-court judges.

Kagan indicated she believes there was value in the court making a pledge. “The chief justice is studying the question of whether to have a code of judicial conduct that is applicable only to the United States Supreme Court,” Kagan said at the time. “That’s something we have not discussed as a conference yet, and has pros and cons I’m sure, but it’s something that’s being thought very seriously about.”

But agreement was apparently elusive.

The more recent attempt by the court’s legal counsel to identify the issues a code of conduct would address — one person familiar with the matter was reluctant to call it a draft — has been slowed by the disruption caused by the pandemic, the addition of new members of the court and the investigation of the leak last spring of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, which ended the constitutional protection for abortion.

And now there is the matter of workload. The court is deciding a host of issues, will hear more cases through April and is off to a historic delay in issuing opinions in the arguments already conducted.

The independence of the justices also complicates reaching agreement on internal matters. But they have done it in the past.

In 1993, for instance, seven of the justices, noting concerns that “even one unnecessary recusal impairs the functioning of the court,” said they would nonetheless generally sit out cases in which participants work for law firms in which their relatives are partners or would profit from the case.

Most often-cited are the efforts by Ginni Thomas — a conservative activist before the Thomases married decades ago — encouraging state legislators and White House officials not to give up on efforts to reverse the 2020 presidential election results. Clarence Thomas did not recuse himself from litigation before the court regarding that issue, or issues involving the congressional committee investigating the Jan. 6, 2021, riot at the U.S. Capitol.

Ginni Thomas was interviewed by the committee, where she said she does not consult her husband about her activities, and he does not discuss the court’s work with her. Clarence Thomas did not respond to questions about his wife’s activities or his decision to participate in the cases.

Several media outlets reported on what a former antiabortion evangelical leader said were efforts to encourage conservative justices to be bold in decisions regarding the procedure. Alito denied a specific allegation from the Rev. Rob Schenck to the New York Times that the justice or his wife disclosed to conservative donors the outcome of a pending 2014 case regarding contraceptives and religious rights.

Lawmakers asked Roberts why he had not investigated Schenck’s allegation, since the pastor made it to the chief justice in a letter before going public with the charge. Instead, the court’s legal counsel Torrey responded: “There is nothing to suggest that Justice Alito’s actions violated ethical standards.” He indicated the matter was closed with Alito’s denial.

Alito was among four of the five conservative justices who voted to overturn Roe v. Wade who received a hero’s welcome at a gala for the conservative Federalist Society last fall — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett were the others.

But such appearances have raised questions on both sides of the court’s ideological divide.

In the weeks before the landmark decision was overturned, Justice Sonia Sotomayor appeared at the liberal American Constitution Society, where she acknowledged “there are moments where I am deeply, deeply disappointed” with being on the losing side of the court’s major legal battles. Sotomayor strolled through the adoring audience of progressive lawyers, shaking hands as she continued to answer questions and urged the crowd not to lose faith in the court.

In 2020, leaders of the judiciary’s governing body proposed barring federal judges from belonging to either the Federalist Society or the ACS because of concerns that membership in either group could “call into question a judge’s impartiality.” But the draft from the Judicial Conference’s code of conduct committee was quickly scuttled after pushback from more than 200 judges.

While Roberts and Kagan have declined to address groups with such ideological leanings, Alito has vigorously defended federal jurists who choose to affiliate with such organizations. In a speech to the conservative group, he praised the “many judges and lawyers who stood up to an attempt to hobble the debate that the Federalist Society fosters.” He added that “we should all express our thanks to these defenders of free speech.”

There has been more attention on the justice’s spouses, and whether their activities create conflicts. While the justices must note their spouses’ employment, they — as well as other federal judges — are not required to disclose specific clients or activities.

Ginni Thomas’s activities are political, but she runs her own consulting firm. Roberts’s wife, Jane, who gave up her partnership at a large law firm after her husband was confirmed as chief justice, is a legal recruiter. Barrett’s husband, Jesse, opened a Washington office for his Indiana-based law firm. Justice Ketanji Brown Jackson’s husband, Patrick, is a doctor, but she had to amend her financial disclosure to note he has consulted as an expert in medical malpractice cases.

In recent years, there were bipartisan efforts in Congress to require a code of conduct and enhance financial disclosure requirements for justices. Sen. Sheldon Whitehouse (D-R.I.) and Sen. Lindsey O. Graham (R-S.C.) expressed concern in a 2021 letter to Roberts that justices of “our highest court are subject to the lowest standards of transparency of any senior officials across the federal government.”

But some on the right now attribute the increased scrutiny of the court to the simple fact that a conservative supermajority is swiftly changing its jurisprudence on controversial issues. That would likely inhibit any move in Congress to either try to enact a Supreme Court-specific code of conduct or demand the court enact one itself.

Roth, of Fix the Court, acknowledged that congressional calls for reform have a partisan tone. But he also noted there was bipartisan criticism of the court’s internal investigation of the Roe leak, which failed to identify a culprit and in which justices were not subjected to the same sworn testimony that other court employees faced.

“There are some partisan legs to this — people going after this justice or that justice because of opinions they don’t agree with,” Roth said. “But given the justices’ power, they are going to be scrutinized like presidents and members of Congress now. I think that is fair.”

Robert Barnes has been a Washington Post reporter and editor since 1987. He joined The Post to cover Maryland politics, and he has served in various editing positions, including metropolitan editor and national political editor. He has covered the Supreme Court since November 2006.

Ann Marimow covers legal affairs for The Washington Post. She joined The Post in 2005 and has covered state government and politics in California, New Hampshire and Maryland.

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