Ethics Watch
| Publication year | 2022 |
| Pages | 18 |
Recusal of Judges and Justices is All in the News
By Nathan M. Crystal
Recusal of judges is a hot topic these days. Various news services recently reported that the House Committee investigating the events of January 6 has reviewed more than two dozen text messages between Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, and former President Donald Trump's then Chief of Staff, Mark Meadows, in which Ms. Thomas urged Mr. Meadows help President Trump to "stand firm" for "constitutional governance" that was at risk of a "Heist" from the "Left." As a result of this revelation two dozen democratic lawmakers called on Justice Thomas to recuse himself in future cases involving challenges to the 2020 election and ones arising from the events of January 6.
During confirmation hearings, recently confirmed Supreme Court Justice Ketanji Brown Jackson stated that if confirmed to the Court, she would recuse herself from participating in an affirmative action case involving Harvard University that the Court is scheduled to hear in the fall because she is a member of the Board of Overseers of Harvard University (She will complete her six-year term on the Board this spring.). The Court will also hear a similar affirmative action case in the fall involving the University of North Carolina. Judge Jackson did not state whether she would recuse herself in the UNC case; she has no affiliation with UNC, and if the cases are heard separately, it is likely that she would not recuse herself.
The Thomas-Meadows text messages resulted in renewed calls for adoption of a Code of Conduct for Supreme Court Justices. See Congressional Research Service, A Code of Conduct for the Supreme Court? Legal Questions and Considerations (updated April 6, 2022). The Judicial Conference of the United States has adopted a Code of Ethics for United States Judges, See www.uscourts.gov/sites/default/ filesZvol02a-ch02_0.pdf, but the Code does not apply to Supreme Court Justices.
However, the adoption of a Code of Conduct for Supreme Court Justices is unnecessary to deal with recusal issues like the ones facing Justices Thomas and Jackson. Adoption of a Code is unnecessary because Supreme Court justices are already subject to the federal disqualification statute, 28 U.S.C. §455(a), which provides:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (emphasis added).
The problem with application of the federal disqualification statute to recusal decisions made by Supreme Court justices is that their decisions are unreviewable. If a lower federal court judge refuses to disqualify himself or herself, the decision is subject to appeal. Of course, the standard of review is deferential - abuse of discretion - and federal judges cannot be removed from office except through impeachment. However, a federal judge who rejects a motion for disqualification must still provide reasons for that denial and that requirement along with the possibility of appeal provides some oversight of decisions by lower federal court judges not to recuse themselves. Neither of these mechanisms exists for Supreme Court justices. Justice Thomas will certainly face motions for disqualification/recusal in cases involving the 2020 election including probably criminal prosecutions arising out of the events of January 6. However, if he decides to deny such motions for disqualification, he is not required to give written reasons for his denial, nor is his refusal to recuse himself subject to appeal.
When a Supreme Court Justice refuses to recuse himself or herself without statement of reasons and without any possibility of appeal, public confidence in the impartiality of the Court's decisions is impaired. Concern about public loss of confidence in the impartiality of decisions by judges is the basic reason behind 28 U.S.C. §455. The Court could itself devise a mechanism for dealing with recusal issues by members of the Court. There is precedent for the Court adopting an internal procedure on an ethics issue - namely, the receipt of outside income by Supreme Court Justices. See Resolution of January 18, 1992...
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