Sherrilyn Ifill’s The Chief Strikes Out

Lucky for us, guest blogger and my brilliant colleague Sherrilyn Ifill has written a guest post on Chief Justice Roberts’s defense of the Court’s recusal standards and his dismissal of related concerns with regard to upcoming cases, including the health care challenge.  Here is Professor Ifill’s post entitled “The Chief Strikes Out.”

The Chief Justice of the United States is too polite to tell those of us who’ve raised concerns about Supreme Court ethics and recusal standards to go jump in a lake.  So instead, he invited us to a baseball game.  In his 2011 State of the Judiciary address to Congress, Chief Justice John Roberts invoked the 1919 Chicago White Sox baseball scandal to explain why, in his view, the justices of the Supreme Court need not formally adhere to the Code of Judicial Conduct that governs the conduct of every other judge in the country or modify its current recusal practice.  It’s not worth arguing with the Chief about the significance of the Judge Kennesaw Landis‘ role in resolving what was then the worst scandal in sports history.  I have elsewhere taken issue with what I regard as the Chief Justice’s inadequate conception of the role of umpires in his confirmation hearing opening statement.   But as every true sports fans knows, you can’t win a sports argument.

Justice Roberts deserves credit for devoting his entire State of the Judiciary address to responding to the growing swell of critics in Congress, in the academy and in the advocacy community for changes in the Court’s recusal practice [although very persuasive critiques suggest that the Chief might well have spoken in his remarks directly to the crises effect the lower federal court judges] .  Given the fact that one of the biggest problems with the Supreme Court’s ethics and recusal practices is the silence and secrecy that shrouds them, Roberts’ public and detailed defense constitutes a welcome indication that the Court is willing to engage respectfully with its critics. But Roberts’ forthrightness cannot overcome the fundamental inadequacy of his response to the concerns raised about the Court’s ethics and recusal practice.

I found Justice Roberts’ defense of the status quo in the Supreme Court’s recusal practice to be the most unsatisfying aspect of his remarks.  As the Chief notes, Title 28, section 455 (a) of the United States Code requires federal judges to withdraw from cases in which their “impartiality might reasonably be questioned.”  Unlike the Code of Judicial Conduct which, by its express terms does not cover Supreme Court justices, 455(a) applies to justice on the High Court which even Justice Roberts concedes when he tells us that “individual Justices decide for themselves whether recusal is warranted under 455.”  The Supreme Court has said that this standard does not require proof of actual bias and is to be judged by an objective standard, not the subjective view of the judge about his own impartiality.  The standard is based on that of the “reasonable person.”  In this regard, even the mere appearance of bias may require withdrawal.  This comports with the Supreme Court’s view even before 455(a) was amended that include an objective standard that  “justice must satisfy the appearance of justice.”

In addressing the recusal question, Justice Roberts rejects outright calls for Justices Thomas and Kagan to recuse themselves from hearing the case involving challenges to the health care law. But concerns about the Court’s recusal practice transcend the particulars of the health care case.  Questions about the Court’s contemporary recusal practice date back to Chief Justice Rehnquist’s decision to participate in the Laird v. Tatum case in 1973, a year after he had testified before Congress in defense of the surveillance practices at issue, as an Assistant Attorney General in the Nixon Administration, and continued through Rehnquist’s decision sit in the 2000 Microsoft case, potential conflicts among several justices in Bush v. Gore , and through the controversy surrounding Justice Scalia’s duck-hunting trip with then-Vice President Dick Cheney while a case against the Vice President was pending in the Court.

The key issues at the center of the controversy are those of transparency and consistency.  How do individual justices apply the standard for recusal set out in 455(a)?  The Court’s recusal practice is entirely opaque.  Justices are not required to, and most often do not, write decisions explaining why they have declined to recuse themselves from cases in which their withdrawal has been requested by parties.  That’s why Justice Scalia’s 22-page memorandum opinion in response to the duck hunting controversy was so extraordinary and welcome, despite the many flaws in Scalia’s reasoning.  We simply have no sense of how the justices apply the reasonable person standard in recusal cases.

In the absence of an opinion, even when the justices do recuse themselves, the parties and the public have little understanding of the basis upon which an individual justice took that action.  It’s easy enough when there is an actual financial connection between a justice and one of the parties, or when the child or close relative of a justice is a lawyer for one of the parties.  But the “appearance” standard set out in 28 U.S.C. 455 does not require actual bias.  As a result we have very little sense of what – to the understanding of members of the Court – actually constitutes the appearance of partiality.  This has the effect of increasing the controversy when, for example, Justice Thomas’ wife engages in high profile political behavior in opposition to the health care law, and Thomas makes comments that appear to approve her recent conduct.  There is endless speculation, but very little Supreme Court precedent to guide a sound discussion of whether in fact recusal is warranted.

Roberts may be right that neither Thomas nor Kagan should recuse themselves.  But this is not a matter the Chief can simply determine based on his confidence in the integrity of his colleagues.  The question of recusal in neither instance is as much of a slam-dunk as Roberts and some ethicists have suggested, and is entitled to careful consideration by each of the justices in accordance with the standards of 455(a).  While it is a comfort that Justice Roberts has “complete confidence in the capability of his colleagues to determine when recusal is warranted” that is simply not the standard set out in 455, or in the Court’s jurisprudence interpreting that statute. And frankly, many Americans simply do not share that confidence.  Moreover, the lawyers who practice in the Court should have the opportunity to rely on more than the assurances of the Chief, in assessing the adherence of individual justices to the legal standard for recusal.

The Chief Justice’s explanation that recusal for Supreme Court justices carries greater consequences than recusal for other federal judges (because no other judge can replace an absent Supreme Court justice), does not speak to the demand that the court pull back the shroud of secrecy that currently surrounds its recusal practice. It’s also worth noting that the statute indicates that a judge “shall” withdraw when their impartiality can reasonably be questioned.  Thus, while due regard should be given to the fact that no other judge can sit in the place of a Supreme Court justice, recusal is an imperative and should be undertaken by a judge regardless of whether a party seeks the withdrawal of the justice.   And one could certainly conceive of a system in which retired Supreme Court justices (like O’Connor and Stevens) could conceivably sit in the place of a recused justice if Congress so designated.

In short, although Chief Justice Roberts’ State of the Judiciary is a welcome response to an important and controversial issue, it falls far short of an adequate response.  The question of the Court’s recusal practice and ethics standards was not born of the health care law controversy, and it’s perhaps a shame that the partisan nature of that case overshadows what has been an ongoing concern among many court watchers.  At issue is the transparency of procedures that go to the very legitimacy of the Court’s decisionmaking.  They are procedures that govern every other federal judge in the United States, who like Supreme Court justices, have had their “character and fitness have been examined by a rigorous nomination and confirmation process.”  Justice Roberts has not yet made the case for why the Supreme Court should be exempt from the same ethics and recusal standards that govern those judges.

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5 Responses

  1. Steven Lubet says:

    Excellent post.

  2. Clinton Bamberger says:

    I concur with Steve Lubet. Prof Ifill’s analysis of the comment by the Chief Justice is right on the mark.

  3. Stephen Wyse says:

    In Sutheland v. Massa there is currently pending before the S.Ct. a 455(a) recusal challenge – The Article III constitutional fitness to “Senior” judges was challenged and a “Senior” judge ignored the challenge and ruled against congress’s ability to under the DPPA to declare certain driving records private & that Missouri also could not declare 911 records private unless they meet an additional constitutional privacy test and that Defendant’s argument raising a matter of law did not entitle plaintiff to amend the pleadings to conform to that legal issue.

  4. Rick Garnett says:

    Prof. Ifill concludes by saying that “Justice Roberts has not yet made the case for why the Supreme Court should be exempt from the same ethics and recusal standards that govern those judges.” But, I did not read the Chief Justice’s report as asserting that the Court is or should be “exempt” from these “standards.” It seemed to me that he stated clearly that his colleagues consider questions of recusal using precisely those standards. The Chief’s point, as I understand it, was more that it would raise tricky constitutional questions for Congress to purport to subject the Justices to the recusal-related statutes. And, I understood him to be pointing out that Justices’ decisions about recusal cannot really be seen as reviewable in the way that lower-court judges can be. I guess I am missing what’s thought to be objectionable about his response.

  5. cleopheous says:

    preach to us about integrity? spare us