Legislating a Supreme Court Recusal Process

March 22, 2011

I have a feeling that the debate over whether Justices Thomas and Kagan should recuse themselves from consideration of the Affordable Care Act is just getting started.  So far, Republicans have demanded that Kagan step aside because of her previous work as President Obama’s Solicitor General.  Then, seventy-four Democratic members of the Congress signed a letter to Justice Clarence Thomas asking that he recuse himself from the case because his wife’s work as a lobbyist for a group opposing the Health Care law creates the appearance of a conflict of interest.  Just yesterday, there was news that members of the Congress are working to see that Justice Thomas is disbarred.  A Complaint seeking his disbarment was filed in Missouri late last month.   

Leaving aside the merits of the debate, what I find so interesting about the calls for recusal is that the only authority that can impose recusal is the individual justice.  There is no procedure that would require a justice to step down, nor is there an appeal process in place following a decision not to recuse, as contrasted to the lower courts. Moreover, the United States Supreme Court is the only governmental entity that is not subject to any mandatory ethics requirements.  

This has led some commentators to urge the adoption of legislation that would require ethical accountability for Supreme Court justices.  In this Washinton Post Op-ed, Nan Aron suggests legistation that would make Supreme Court justices accountable to an ethics code.  To enforce compliance she suggests “adjudication by other sitting justices, retired justices, lower court judges, the judicial conference or some combination of these.”  

Recently, the Congress has taken up Ms. Aron’s charge.  One bill introduced March 1 would establish recusal procedures including public disclosure of the reasons for recusal and a process that would allow parties to request the Court to decide whether a particular justice has a conflict of interest. It would also apply the Code of Conduct for United States Judges to the Supreme Court.  It currently applies only to other Federal judges.   

Another bill (2010 WL 3911894) introduced by Senator Leahy would authorize the designation and assignment of retired justices of the Supreme Court to a particular case in which an active justice is recused.  Introducing the bill, Leahy noted: “Allowing retired justices to sit on the Supreme Court would encourage sitting justices to recuse themselves when there is even an appearance of a conflict of interest.”  156 Cong. Rc. S7791-01   2010 WL 3911894

Passage of any law that would limit Supreme Court power seems, well, unlikely.  For now, the volume of the debate will likely get very loud as the case nears the High Court.

In my reading about recusal, I found these additional references interesting:

Clarence Thomas’ dangerous conceit in the Los Angeles Times

The Court’s Recusal Problem in the New York Times