As you may have guessed, no one on the Supreme Court, nor any legal expert, has taken seriously President Trump’s calls for Justices Ginsburg and Sotomayor to recuse from all Trump-related case recusals.
And as we’ve noted, Justice Sotomayor is well within her rights – in fact, it’s her job – to be concerned about the speed at which the administration is running to SCOTUS when they receive a district court ruling they don’t like and to write about her concern in a dissent.
With Ginsburg, it took her a bit too long to acknowledge that her comments on then-candidate Trump were out of bounds, and we wish the justices had a code of conduct that applied to them, so maybe they’d think twice before speaking out in a way that suggests political bias.
Even though there’s no SCOTUS code of conduct, the federal recusal statute does apply to the justices.
The law derivers from English common law and states that judges and justices may not hear cases if they were previously involved as a lower court judge, have an intimate knowledge of the facts, have a family member associated with it or could benefit financially from its outcome.
The challenge, though, is that the decision to recuse is up to a justice and a justice alone. So if the public – or a president – believes that a justice erroneously participated in case, in spite of a conflict, the only recourse is the high bar of impeachment. It would be beneficial to the public’s faith in the court to know how justices come to their recusal decisions when it’s a close call, but like so many other things at SCOTUS, this may forever remain a mystery.
One solution to clarifying recusals that FTC and our allies in Congress support is requiring judges and justices to briefly explain them when they occur. In other words, instead of the weekly orders list simply telling us that, say, the Chief Justice “took no part” in reviewing a petition, the court would instead append a few words to the notice, such as, “he took no part due to a stock conflict” or “he took no part due to his participation in an earlier iteration of the case.”
This type of transparency should be a given but unfortunately isn’t.