Revelations that Justice Clarence Thomas’s spouse sent at least 29 messages to Trump aides about overturning the 2020 election added to numerous examples of her sometimes outlandish partisan lobbying and Justice Thomas’s not recusing himself in cases involving matters about which she lobbied.
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The revelations produced demands for his recusal in upcoming cases and rekindled calls for applying tougher ethical codes to the high court—calls that often reflect shaky understandings of the arcane regime of federal judicial ethics regulation and probably confuse those trying to make sense of it.
In fact, none of the proposals currently tossed about would affect recusal decisions. Whether to recuse is a judicial decision, reviewable only by a higher court, and there’s no court higher than the Supreme Court. The imbroglio may, however, reawaken interest in a legislative proposal that surfaced a decade ago during previous recusal controversies.
To understand the recusal matter, it helps first to understand the two main judicial misconduct statutes.
THE JUDICIAL DISQUALIFICATION STATUTE
Many commentators on the Thomas affair have overlooked the federal Disqualification Statute. For one example, a CNN analyst stated “There is no formal rule for when judges [sic, probably meant “justices”] should recuse themselves.” For another, the Washington Post editorialized “that Congress should impose strict ethics rules on Supreme Court justices. This is harder than it sounds. Unlike in lower courts, no one can sit in for justices who have recused themselves.”
But Congress has imposed recusal rules. The Disqualification Statute provides that “any justice [or] judge … shall disqualify himself [sic] in any proceeding in which his impartiality might reasonably be questioned” as well as in more specific, mostly financial, instances. Judges can recuse themselves sua sponte or do so—or decline to do so—if a party moves for disqualification. A declined disqualification motion is normally subject to appeal to a higher court, and courts have produced an extensive case law on the matter. (Others confuse the Code of Conduct for lower federal court judges with the Disqualification Statute, possibly because the Code repeats the statute almost verbatim. Compare references to disqualification in two New Yorker articles—here and here.)
THE JUDICIAL MISCONDUCT STATUTE
Congress has also enacted a Judicial Misconduct Statute, which allows anyone to file a complaint alleging that a judge—but not a justice—has engaged in misconduct (“conduct prejudicial to the effective and expeditious administration of the business of the courts”). The statute authorizes sanctions, although judges administering the Act rarely find reason to impose them. As explained below, even if the Misconduct Statute covered the Supreme Court, it would not resolve disputes over recusal.
Nor would applying the Code of Conduct to the Court, although commentators regularly advocate doing so, and often mischaracterize the Code in the process. A recent wide ranging FixGov analysis of Supreme Court partisanship characterized the Code as “the most detailed ethical rules governing federal judges;” said that it was [e]nforced by designated judicial authorities.” To the contrary, a former chair of the Judicial Conference committee responsible for the code made clear that “[w]e are not in the discipline business.” The Code itself says that is designed to provide guidance … [M]any of [its] restrictions … are necessarily cast in general terms” (not criminal-code-like strictures). And the Conference’s rules for the administration of the Misconduct Statute say that only “some of the … activities [covered by the Code] may constitute misconduct under the Act”. (Still, the Court should adopt its own advisory Code, simply to show that it takes ethics seriously.)
Culled from brookings.edu
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