The Supreme Court’s recusal process is its next ethical conundrum
As journalists continue to dig into the justices’ financial reports and other documents, new questions continue to arise about their recusal and disclosure practices. The court’s steadfast refusal to adopt a written code of conduct — it is the only court in the U.S. without one — raises further questions. And the justices’ unprecedented Statement of Ethics Principles and Practices, recently provided to the Senate Judiciary Committee, only made things worse.
Some of the issues are more serious than others. It was recently reported, for example, that Justice Sonia Sotomayor failed to recuse herself in multiple cases involving her publisher, Penguin Random House, despite having received over $3 million from the company via an advance and subsequent royalties.
Justice Clarence Thomas’s financial entanglements with billionaire Harlan Crow have also been widely reported, including his decades-long nondisclosure of extravagant gifts and other transactions.
Other revelations are comparatively minor by any definition, such as Justice Neil Gorsuch’s failure to disclose the buyer of his vacation property (it was a lawyer whose firm is often before the court), and Chief Justice Roberts’s inaccurate report of his wife’s compensation from her employer (calling it “salary” rather than commissions from services to law firms).
Taken together, incidents such as these are revealing of a court that, at a minimum, has been less than meticulous about its ethics obligations.
Sotomayor’s participation in the Penguin Random House cases — in 2013, 2019 and 2020 — is emblematic of the court’s unacceptable approach to recusal. Although Sotomayor had no direct financial interest in the outcome of the cases, it should have been obvious that her continuing receipt of royalties from one party could create an appearance of favoritism. The federal recusal statute requires disqualification whenever a justice’s “impartiality might reasonably be questioned,” which was surely applicable to a justice who anticipated substantial future income from a party to a case.
Nonetheless, Sotomayor’s decision to participate in the Penguin Random House cases was hers alone, in keeping with the court’s historic practice, with no review by the other justices. The Statement of Ethics Principles and Practices attempts to justify this approach, insisting that full court review “would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.”
This is nonsensical, suggesting that future justices might strategically connive to displace an otherwise non-disqualified colleague from a case. Moreover, a majority of the justices would always be able to determine the outcome of a case, with no need to recuse a potential dissenter.
The inadequacy of the court’s practice is highlighted by the recusal in the same cases by then-Justice Stephen Breyer, who also received royalties from Penguin Random House. The two recusal decisions are contradictory. Receipt of royalties either does or doesn’t create a reasonable question of impartiality, which should not differ according to the inclinations of individual justices. Without review by the full court, there is no way to resolve such inconsistencies, much less provide guidance to lower court judges who are governed by the same statute.
In another historic practice, the justices almost never provide the reasons when they do recuse themselves. The Statement of Ethics Principles rationalizes this approach by claiming that “public disclosure of the basis for recusal would be ill-advised [in] circumstances that might encourage strategic behavior by lawyers who may seek to prompt recusals in future cases.”
This explanation is again illogical. The most common bases for recusal are stock ownership and previous participation in the case, neither of which could ever be created by a lawyer’s “strategic behavior.” It is arguably conceivable that a law firm could employ a justice’s family member for the purpose of prompting disqualification, but the court’s policy for such recusals was announced in 1993, and there could be no further harm by noting its application in individual cases.
The Statement of Ethics Principles goes on to allow that “a justice may provide a summary explanation of a recusal decision, e.g., ‘Justice X took no part in the consideration or decision of this petition. See Code of Conduct, Canon 3C(1)(c) (financial interest).’”
That might be somewhat reassuring with evidence that it has ever happened. But a thorough search by a Northwestern University research librarian did not turn up a single instance in which a justice explained recusal with reference to the Code of Judicial Conduct.
It also doesn’t appear to have been a reliable statement of future intent. Six days after signing on to the Statement of Ethics Principles, Justice Ketanji Brown Jackson recused herself from a case without noting the reason or citing the code. Justice Neil Gorsuch did the same thing — recusal without explanation — four days later.
When it comes to non-disclosure of gifts and financial ties, Justice Thomas is in a class by himself. He omitted the fact that he received hundreds of thousands of dollars of benefits from Republican mega-donor Harlan Crow, including private jet travel, private school tuition for his grand-nephew and a real estate deal — most of which should have been included on his annual financial reports.
But even far smaller omissions can be problematic. Chief Justice Roberts’ wife received over $10 million in commissions in her job as a legal recruiter, often on behalf of law firms that appear before the Supreme Court.
Although Roberts fully disclosed his wife’s employer, he misreported the nature of her compensation as salary rather than commissions, the latter of which rise and fall with the satisfaction of law firm clients. The annual disclosure form does not call for the amount of spousal income, but it plainly requires the “type” of income as something the public is entitled to know. Although presumably unintentional, Roberts’ inaccuracy reveals at least a lax approach to disclosure, with the result that a major portion of his family’s income was obscured.
The lower federal courts adopted their code in 1973, covering many subjects unmentioned in the Supreme Court’s Statement of Ethics Principles and Practices, including political activity, solicitation of charitable contributions, avoiding outside influence, leaking internal communications and public comments on impending cases. Most important, and apparently most necessary, is the admonition that “a judge should avoid impropriety and the appearance of impropriety in all activities.”
The adoption of a Supreme Court code of conduct would not resolve the justices’ ethics problems, but it would be a profound, much-needed and long-overdue statement of the court’s commitment to the highest standards of ethics.
Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is coauthor of “Judicial Conduct and Ethics” (Fifth edition) and has written many other books.
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