Last week I wrote about the ironic comments of Chief Justice John Roberts that Supreme Court justices be left to decide whether they have a conflict of interest to disqualify their sitting in judgment in a particular case.

The New York Times joined the current debate over Supreme Court recusal practices, editorializing that the court should subject itself to the same ethical rules already applicable to all other federal judges and for the justices to increase the transparency of their recusal decisions. The justices’ personal vigilance and judgment may well be correct; but if it is so, why not let the public see it?

There is a confounding legal question that arises from the conundrum of judging Supreme Court justices who are themselves a last resort on justiciable issues under the Constitution. Visiting Brookings scholar Russell Wheeler has argued that “grumblings” over the justices' governing practices and proposals for their reform would create more problems than we now have under the idiosyncratic procedure whereby individual justices decide claims against their own partiality. We are in “uncharted waters,” Wheeler states, correctly. Wheeler favors transparency and explanations by the justices who decide their own conflicts, and argues against submission to another judicial body or agency. He fears 4-4 decisions, an evolving common law of Supreme Court recusal, and after-the-fact appeals of decisions.

Earlier, 135 law professors called on Congress to implement reforms to ensure that the justices are held to the same Code of Conduct that already applies to all other federal judges. The law professors also called for some method of reviewing an individual justice’s recusal decision, and for there to be written opinions explaining recusal decisions. The reforms called for by the law professors were eventually introduced in the form of a pending House rule (H.R. 862).

The Supreme Court could solve the constitutional implications noted by Wheeler and others by adopting a rule of its own, based on prevailing ethical standards, and assigning the administration and governance of recusal motions to a panel (changing periodically) of federal judges from the Judicial Conference (or any other independent and judicious person or body) to provide advisory opinions on recusal motions. Then it would be giving away no incursion on its constitutional supremacy, and at the same time adapting rational, equitable procedures that will encourage public respect of its recusal practices, and acknowledge that the Code of Conduct is binding upon the court.

That procedure, with its infirmities, is better than judges judging themselves on personally conflicting matters pertaining to the integrity of the court.



Ronald Goldfarb is a D.C.- and Miami-based attorney, author and literary agent.