Former U.S. Sen. Arlen Specter of Pennsylvania, saying the Supreme Court’s 5-4 “recurrent” ideological split has “shaken confidence in its integrity,” calls on Congress to set judicial recusal rules for the high court if the justices don’t act.
In a Washington Post op-ed, Specter also sounds off on the high court’s 2000 Bush v. Gore ruling ”in which the justices elected George W. Bush by one vote with a tortured interpretation of ‘threaten[ed]irreparable harm,’” and its 2010 Citizens United decision.
“Enormous expenditures from political action committees have turned the Republican presidential primaries into a billionaires’ auction and threaten to enable big money to elect our next president,” Specter, a former chairman of the Senate Judiciary Committee and Republican-turned-Democrat, writes about the aftermath of Citizens United.
The high court will hear oral arguments in the federal health care case next week, with all of its justices expected to be present. That’s despite calls by groups and individuals for recusal by Justices Elena Kagan and/or Clarence Thomas, along with proposals for the court to formally adopt an ethics code spelling out procedures for recusal by a justice (see Gavel Grab).
Specter touches on the high court’s landmark judicial recusal ruling in 2009, Caperton v. Massey, in urging the justices to formally adopt recusal standards:
“Starting with the 17th-century principle from Lord Coke that ‘no man can be a judge in his own case,’ Justice Anthony M. Kennedy wrote in the Caperton decision that a judge ‘accused of bias’ should not be ‘the sole trier of fact’ on ‘inquiring into actual bias.’ Why wouldn’t that rationale apply equally to require review of a Supreme Court justice’s decision to sit under questionable circumstances, at least a review by his or her colleagues?”
A federal judge’s decision whether to recuse when faced with a potential conflict of interest cannot be left to the judge alone to decide, but must be reviewed by other jurists, a New York Times editorial argues in advocating the same standard for Supreme Court justices.
The editorial is entitled, “A Way Forward on Judicial Ethics.” It suggests that a proposal by legal ethics expert Stephen Gillers of the New York University School of Law would be a “sensible recusal process” for the high court to adopt.
Under Gillers’ proposal, if a justice decided against recusing when he received such a motion, either the chief justice or senior associate justice — if the motion concerned the chief justice — would weigh whether the motion was meritorious. If it was deemed to have merit, he would send it to the full court for a written decision, with the justice at issue not participating. A majority would be required to mandate a justice’s recusal.
“This approach would add little to the court’s workload since recusal motions are rare. But it would add considerably to the court’s credibility with the American public,” the editorial says.
Despite growing criticism from some that the Supreme Court is out of touch with public attitudes, its rulings generally reflect mainstream political beliefs, according to an opinion column by Justin Moyer at the Washington Post.
While several of the justices have taken positions on cases that seem extreme, Moyer cites a recent study showing that the Supreme Court as a whole mirrors the views of the public. In his commentary, Moyer says that the justices at far ends of the ideological specturm ”cancel one another out.”
Although the Supreme Court has generally maintained a low profile, it seems headed for a challenge from Congress, according to a Des Moines Register editorial, which noted that tension between the two branches has intensified over a pending decision in the constitutionality of the Affordable Care Act. Several senators have exchanged letters with Chief Justice John Roberts, urging “the court to adopt binding ethics rules.” Opponents and advocates of the bill have insisted that Justices Clarence Thomas and Elena Kagan recuse themselves from oral arguments.
According to the editorial, Roberts’ blunt dismissal of the request may increase sentiment that the court is out of touch with the public. The article writes that the court could avoid controversy by agreeing to discuss ethics questions. If the justices make the court’s “processes more transparent to the public,” they might remain in better favor with the people. By not disclosing important recusal information, the editorial says, the court could face an uphill battle with Congress in the future.
“Clear and forthright standards” for recusal of Supreme Court justices “would enhance the court’s credibility and the public’s trust,” a New York Times editorial said in urging the high court to adopt a “transparent process” on recusal requests.
As congressional liberals call for Justice Clarence Thomas to step aside from reviewing the new federal health care law, and conservatives seek recusal by Justice Elena Kagan, legal ethics experts say a good case for recusal hasn’t been marshaled. But the editorial said the current picture isn’t pretty:
“[C]onflict-of-interest charges diminish the court and draw it further into politics. This latest fight should leave no doubt that when concerns are raised about a justice’s impartiality, it should not be left to that justice to decide whether to withdraw from the case.”
The justices are the only federal judges who aren’t covered by an ethical code of conduct, and there are sound standards guiding recusal decisions in the lower federal courts. But the Supreme Court has not spelled out such rules, and its justices rarely explain their actions Read more
In a growing debate over ethics rules for Supreme Court justices, a Brookings Institution scholar says it’s hard to regulate justices’ conduct without causing more problems, and he suggests some incremental steps.
Russell Wheeler, a Visiting Fellow at Brookings, suggested these ideas in an online paper:
- It “is worth considering” a requirement that justices disclose their reasoning for a decision on recusal, he wrote. (Justice at Stake recently said Justices Clarence Thomas and Elena Kagan should strongly consider giving a public explanation of their reasons for not recusing from the federal health care case.)
- The justices could adopt standards to guide whether recusal is merited in particular case and describe ways for justices to advise colleagues about recusal.
- “If the Court has adopted resolutions pursuant to the delegations of regulatory authority under the various ethics acts, or concerning the [judicial] Code of Conduct, why can’t they be made public?”
A drumbeat of pleas for two Supreme Court justices to step aside from hearing the federal health care overhaul case is thrusting the judicial recusal issue into news headlines across the country.
The widely-distributed Associated Press published an article headlined, “[Justices] Thomas, Kagan asked to sit out health care case.” In the nation’s capital, the Washington Post had a front-page article entitled, “A health law warm-up fight for high court: Thomas and Kagan are focus of a recusal duel between left and right.”
The articles recapped themes familiar to readers of Gavel Grab posts, regarding pleas for Justices Clarence Thomas and Elena Kagan to step aside from hearing the biggest case before the court in years. Some legal experts contended these campaigns for recusal are partisan and targeted at the outcome of the case, not about perceived conflicts of interest.
The AP, for example, summed up a standoff at the intersection of law and politics:
“Conservative interest groups and Republican lawmakers want Justice Elena Kagan off the health care case. Liberals and Democrats in Congress say it’s Justice Clarence Thomas who should sit it out.
“Neither justice is budging — the right decision, according to many ethicists and legal experts.”
The Post article quoted John Steele, a California lawyer who teaches legal ethics and helps run a blog called Legal Ethics Forum, as saying that for those analysts without a partisan axe to grind, there is a general consensus that “we don’t have a case for either one of them recusing.” Read more
Rules and procedure governing judicial disqualification vary widely across the 50 states, and they have gotten more scrutiny since the Supreme Court’s landmark Caperton v. Massey opinion in 2009. The court found a risk of bias when a West Virginia judge voted on a case involving a coal company whose chief executive had spent millions to help the judge win election.
About one sixth of approximately 360 advisory opinions issued by state judicial ethics commissions in 2010 dealt with disqualification, Cynthia Gray, head of the Society’s center for judicial ethics, said at a panel discussion, according to a Reuters article.
In August, the American Bar Association approved a resolution calling on states to adopt clear new rules for judicial disqualification. Justice at Stake has called for more rigorous rules on judicial recusal to protect fair and impartial courts (see Gavel Grab). Read more
The Alliance for Justice (AFJ) weighs in on continuing calls to implement a Code of Conduct to the U.S. Supreme Court in a Huffington Post article. Introducing a new video, AFJ President Nan Aron says the public’s confidence in the Court is greatly reduced by the absence of an ethics code that applies to all other federal judges.
Aron argues that the general public must perceive judges as impartial arbiters of the law, rather than partisan agenda-setters, in order for the judiciary to function effectively:
“Everyone who walks into a courtroom needs to know they will get a fair hearing before a judge who has not pre-judged their case as part of a political agenda. …As a country rooted in the rule of law, we simply can’t afford to have Supreme Court justices who feel unconstrained by the same formal ethical standards that bind all other federal judges. The code prohibits participation in political activities. It bans serving as the keynoter at fundraising events, no matter how seemingly benign. It instructs judges not to do anything that creates even the ‘appearance of impropriety.’ ”
A new Alliance for Justice short film, A Question of Integrity: Politics, Ethics, and the Supreme Court,
provides examples of questionable ethical conduct by the Justices. Among these are Justice Thomas’ and Scalia’s trips to a Federalist Society conference hosted by the Koch brothers and keynote speeches by Justice Alito at American Spectator magazine and Intercollegiate Studies Institute fundraisers.
With future review by the Supreme Court of the new U.S. health care overhaul increasingly likely, a group of 20 House Democrats has voiced questions about whether Justice Clarence Thomas can be impartial.
The group wrote a letter to the Administrator of the Office of U.S. Courts asking for an investigation into whether Justice Thomas willfully failed to disclose outside income received by his wife, Virginia Thomas, according to a Wall Street Journal Law Blog post. She received almost $700,000 from the Heritage Foundation between 2003 and 2007, the letter said.
“The Heritage Foundation was a prominent opponent of the Affordable Care Act, an issue that is expected to be considered by the Supreme Court in the near future,” noted Rep. Louise Slaughter, D-N.Y., in her press release about the letter.
To learn more about ethics questions raised regarding Justice Thomas, including suggestions he should recuse himself from any deliberations about the health care law’s constitutionality, see Gavel Grab. In January, Justice Thomas revised his financial disclosure statements for recent years that did not include his wife’s employment.
The Los Angeles Times editorial board is seeking full disclosure by Supreme Court Justice Clarence Thomas.
Its editorial spotlights a request from Common Cause and the Alliance for Justice for the Judicial Conference of the United States to investigate whether Justice Thomas violated federal ethics rules. While chances of such an investigation occurring are slight, the conduct at issue is “troubling,” the editorial says.
The groups have asked for a probe of whether Justice Thomas knowingly withheld facts about income for his wife, conservative activist Virginia Thomas, from financial disclosure forms; and whether he was not forthright about free air travel furnished by Harlan Crow, a friend and wealthy real estate developer (see Gavel Grab). The editorial concludes:
“It’s up to individual justices how closely they want to associate with prominent business and political figures. To our mind, Thomas has been too free in forming such connections. But regardless of his off-the-bench activities, he should follow — and not just make — the law.” Read more