We need a binding and binding Supreme Court Code of Ethics

In a widely discussed article in the Harvard Law Review, Stanford law professor Mark A. Lemley complained that the newly empowered Roberts court has become an “imperial Supreme Court” that repeatedly uses its decisions to usurp the court’s own power. According to our review, the U.S. Supreme Court’s recently adopted Code of Conduct demonstrates the same “imperial” attitude toward ethical matters, abrogating the ethical mandates that apply to all other judges and seemingly outlawing judges. For the sake of our judicial system, it is time for Congress to act.

Impartial justice and appearance impartial justice are crucial to public confidence in our courts. That is why for years the Supreme Court has called for binding and enforceable ethics rules similar to those governing all lower federal and state courts in all 50 states. It took intense public pressure, generated by news reports revealing lavish gifts for Justice Clarence Thomas and undisclosed lavish vacations given to Thomas and Justice Samuel Alito, to finally get the court to act last year. Unfortunately, the new Code of Conduct of the Supreme Court does not correspond. Its standards are neither mandatory nor enforceable, and some are troublingly inconsistent with obligations expressly imposed on judges by current federal law.

A just-completed New York Bar Association comprehensive review that we helped write found several serious flaws in the 2023 Supreme Court Ethics Code and concluded that congressional action is needed to address the current crisis of public trust. To take just one example, the new Code’s recusal rules govern when a judge should not participate in a case for reasons of potential bias. Federal law has always recognized that due process of law requires that court cases be decided by impartial judges. This has been true since the first Congress required every judge to take an oath to execute the laws “faithfully and impartially.” The law says when a federal judge should waiver, 28 USC § 455, expressly requires that a Supreme Court justice “must” to depart whenever his or her “impartiality may reasonably be called into question.” As the Court itself has recognized, Section 455 imposes an objective standard for recusal: “What matters is not the reality of the bias or prejudice, but its appearance.”

It seems easy to understand and reasonable. For example, consider Chief Justice John Roberts’ reaction to the news that an upside-down American flag was seen near Justice Alito’s home shortly after the Capitol riots on January 6, 2021. With former President Donald Trump cases pending before the Supreme Court, and Alito already tasked with writing the majority opinion in one of them, the chief justice took the unprecedented step of transferring the opinion to himself. While the chief justice has said nothing about his action, the timing suggests concern about apparent bias — concern that Alito’s impartiality “may reasonably be questioned.”

But Alito did not recuse himself in any of Trump’s cases, and the recusal rules in the new Supreme Court code did not require him to do so. These rules discourage self-recusal and effectively abrogate Section 455’s mandate that a judge must recuse himself if there is a reasonable appearance of bias.

The code achieves this result in several ways. First, it replaces section 455’s mandatory “shall” waiver with the preferred “shall”, making its waiver rules optional. It then makes matters worse by suggesting that the proper test for when the impartiality of justice “may reasonably be doubted” is reference to “an impartial and reasonable person aware of all the relevant circumstances”. This seemingly innocuous test strikes a key provision from the rules that apply to all other federal judges. For other judges, the test of their impartiality is what an impartial observer would think, given “all the relevant circumstances”. disclosed by reasoned request.”

The last phrase omitted by the Supreme Court Code is important. It focuses on the appearance of bias to a reasonably informed member of the public. Omitting this limitation, the Supreme Court Code instead requires recusal only if a judge’s impartiality is called into question by a hypothetical omniscient observer who knows alleven facts that are not publicly available.

The difference between the two tests became particularly apparent during the Alito-inverted-flag controversy. Alito declined to recuse himself because he believed the man knew all the facts are unlikely to find him biased. As he explained, it was his wife who put up the flag and she refused his request to take it down. While these entirely private facts, known only to the justice and his wife, may be the type of “relevant circumstances” that an omniscient person would consider under the court code, they would never be obtained through “reasonable inquiry” by any ordinary person. . Thus, the court code essentially rejects the need for recusal on grounds appearance prejudice to a reasonably informed member of the public as required by section 455.

This is not the only discrepancy between the code and the federal law. Unlike the rules governing lower courts, the new code includes the so-called “obligation to sit” in the appeal analysis. As stated in the Court’s Code of Conduct, the duty to sit and the duty to attend are two equal and competing obligations, so recusal is appropriate only in emergency situations. When this doctrine was advanced in the last century to justify a decision to deny a challenge, it was criticized as “pernicious” because the judge must err in the challenge. Congress agreed and 50 years ago amended Section 455 to require recusal whenever the impartiality of justice “power As Chief Justice William Rehnquist later recognized, this “removes the so-called ‘duty to sit'” from the challenge analysis. Still, the new court code revives the discredited “duty to sit” — for use only by Supreme Court justices — and Alito relied on it, saying he was “obliged” to sit in cases on Jan. 6.

If all that weren’t troubling enough, the Supreme Court is adding another obstacle to challenge. It gives judges an ambiguous discretion to decide whether their impartiality “may be called into question.” As Chief Justice Roberts told Congress, “The Supreme Court does not review the recusal of one of its members,” so there is no right of appeal. It’s just not right. This violates the fundamental principle of due process, according to which “no man shall be judge in his own case.” If a lower court judge denies a motion to dismiss, that decision can be reviewed on appeal. The same should be true when a judge declines to recuse himself. Either the Supreme Court should review the decision in its entirety, or a lower panel of judges, as some have suggested.

So we return to Alito not to pick on him (potentially more troubling is Thomas’ inexplicable decision to sit in on the same cases), but because he made a rare public statement about his reasons for declining to recuse himself, which highlighted the serious problems in the basis of the code of ethics of the court. As permitted by the Code, Alito applied its entirely voluntary requirements without even invoking the governing challenge standard in 28 USC § 455. He relied on private facts known only to himself and his wife to conclude that no reasonable person would accept an upside-down flag. reflect bias its in favor of former President Trump; he decided that his duty to sit compelled him to participate in Trump affairs; and he reached this conclusion knowing that his decision would not be reviewed by any other judge. Roberts may have thought the flag incident created the appearance of bias, but according to court practice, neither the chief justice nor a majority of the court can force a judge to recuse himself.

In making his decision, Alito applied the Supreme Court’s Code of Conduct as written, and therein lies the problem. The judicial code reflects the approach of the “imperial court”. It does not fully comply with current legislation and does not protect against the appearance of bias. It’s time for Congress to step in.

Hryhoriy L. Discant is of counsel to Patterson Belknap Webb & Tyler.

David A. Schultz is senior counsel at Ballard Spahr and director of the Media Freedom and Access to Information Clinic at Yale Law School.