There is an obvious ethics crisis, and a crisis of public confidence, at the Supreme Court.
Four problems concerning recusal are part of this story — (1) justices not recusing when they should; (2) the inconsistent application of recusal rules; (3) a lack of recusal oversight; and (4) justices receiving free trips and gifts from parties and amici — and the justices have shown little desire or capability to fix any of them.
Remember, even if the justices correctly recuse the vast majority of the time there’s a conflict, judges and justices, per Chief Justice Roberts (p. 3), “are duty-bound to strive for 100% compliance because public trust is essential, not incidental, to our function.”
1. The justices are not recusing when they should. Recent examples include:
— Nov. 2022: Justice Thomas failed to recuse in 22A350, Ward, et al., v. Thompson, a petition trying to stop the Jan. 6 Committee from obtaining the metadata of Arizona GOP officials’ phone records. Thomas’ wife Ginni was in touch with Arizona Republicans in the aftermath of 2020 election, trying to overturn its result.
— Oct. 2022: Justice Jackson failed to recuse in 21-1503, Lloyds Banking Group plc, et al., v. Berkshire Bank, et al., a petition concerning bank collusion and interest rates during the Great Recession. According her 2022 disclosure, she holds four Charles Schwab funds, and ownership of Schwab funds appears to be the reason that Chief Justice Roberts and Justices Kagan and Gorsuch themselves all recused here.
— Apr. 2021: Americans for Prosperity spent more than $1 million to get Justice Barrett confirmed, and Barrett did not recuse from 19-251, Americans for Prosperity Foundation v. Bonta.
2. The justices are not applying the recusal statute in a consistent manner:
— Justice Kavanaugh recused in two petitions last year involving former high school classmate, Michael Vechery, who also signed a letter in support of his confirmation. Justices Scalia, Ginsburg and Thomas all participated in cases that implicated their close friends (see point no. 4).
— Justice Kavanaugh recused in two petitions in 2021 involving possible J&J talc power-ovarian cancer linkages; his father Ed worked on this issue when president of a cosmetics industry association. But Justice Barrett participated in a case involving Shell Oil and climate change, though her father worked at Shell for decades.
3. Recusal motions almost always fail, and rarely does anyone besides the subject judge or justice weigh in:
— Typically, only the judges and justices who are subject of recusal motions rule on them, though in the lower courts, it’s always possible that a denial of a recusal motion could be appealed to a higher court.
— Deciding the extent of one’s own bias is not a best practice, and others, especially in close cases, should be a part of that decision.
4. Parties and amici are taking the justices on fancy trips:
— Notre Dame’s Religious Liberty Initiative and its affiliated faculty have filed 10 amicus briefs at SCOTUS since RLI’s 2020 founding. Last summer RLI paid for Justice Sam and Martha-Ann Alito’s trip to Rome.
— Five months before Justice Scalia died on John Poindexter’s ranch in 2016, Poindexter’s Mic Group had a case at SCOTUS. The justices did not grant cert., preserving Poindexter’s win, and Scalia did not recuse.
— Justice Thomas has taken dozens of trips with and paid for by Harlan Crow, and a Crow family real estate company had a case before the Court in 2004-05. The justices did not grant cert., preserving the Crows’ win, and Thomas did not recuse.
1. Recusal explanations should be required at the SCOTUS level:
— Per the April 25 SCOTUS statement on ethics, “A justice may provide a summary explanation of a recusal decision,” which seemed new at the time.
— We now know the word “may” was doing the work, as Justice Kagan on May 22 and June 12 did provide somewhat of an explanation (e.g., “See 28 U.S.C. §455(b)(3) and Code of Conduct for U.S. Judges, Canon 3C(1)(e) (prior government employment”), and Justice Alito for his May 30 recusal did not.
— What Justice Kagan did should be required of all nine, as the practice of explaining recusals will help the public better understand the justices’ entanglements and get the justices in the practice of being more transparent about their work.
2. The justices should follow the same best practices in conflict screening as lower court judges:
— In March 2022, following the Wall Street Journal‘s “Hidden Interests” series, the Judicial Conference adopted a policy that requires lower court judges to update their conflicts sheet twice per year and sign a certification statement (see p. 5) saying they’ve done this.
— Since Jan. 2007, following a different media investigation, the Judicial Conference has required judges’ conflict sheets to be uploaded into case-assignment software that checks whether the judge has a conflict that would require them to recuse. When a positive hit occurs, the software skips the judge in the assignment process and moves to the next judge on the list, without the conflicted judge even knowing that they “recused” in that case.
— We do not know if the justices are doing either (semiannual checks and software) but they should be. Per sources, FTC has been told that at least a couple justices use a software-based conflict check system, but also that a few are or have been using a physical sheet of paper to determine potential conflicts.
— What’s more, in Dec. 2021 Chief Justice Roberts wrote that the Conference has “begun to enhance the ethics training and refresher courses to ensure that judges are both aware of their obligations and know how to use the conflict-checking tools effectively.” There’s no reason for the justices themselves not to be a part of these trainings.
— FTC favors the belt-and-suspenders approach — i.e., software plus sheet plus training — taken by the Conference.
3. The non-conflicted justices (i.e., the other eight) should help decide recusal motions:
— To those who oppose the notion that eight justices can review a party’s motion to disqualify the ninth justice, recall that the Court does all sorts of things in groups of less than nine.
— The most obvious ones: one justice acting as circuit justice denying an emergency application; eight justices ruling on about 200 petitions per term since there are about 200 recusals at the cert. stage each term (135 so far this term). So we see this is as not a non-issue constitutionally.
4. There should be a cooling-off period between the time an individual or organization gives a justices a free trip or gift and when the justice can participate in a case involving the bestower of that gift:
— A two-year cooling off period should suffice.
— FTC believes that justices’ conflict lists/recusal sheets should not be made public, since you’re going to end up either with a bunch of private information being made public (bad) or with so many redactions as to render the exercise useless (also bad).
— As an example, then-Judge Barrett’s conflicts list was made public by the Senate Judiciary Committee in 2020, and it listed the address where her in-laws live, a fact the public doesn’t need to know.