There are two key loopholes that help Supreme Court Justices like Scalia, Thomas and Alito avoid complying with legal ethics rules on recusal from cases. These loopholes taint the entire decision-making process of whether a particular situation requires that the Justice be recused from a case before the Court. Chris Murphy's legislation does not fully plug these loopholes.
The first loophole is what are the ethical rules that Justices must follow to avoid being required by law to recuse themselves from a case? Murphy's legislation will mandate that Justices comply with a Code of Conduct that is now applicable only to federal judges. However, for decades, there has also been a federal statute that mandates Justices to comply with ethical rules that was modeled on this Code of Conduct.
Justices have avoided recusal under the existing federal statutory ethical rules due to a second loophole that involves the decision-making process. If this loophole is not fixed, then requiring the Justices to comply with the Code of Conduct may not achieve the desired results.
The second loophole is a legal doctrine known as the duty to sit, which affects what factors the Justices consider when analyzing whether he/she must be recused from a case. Generally, the duty-to-sit doctrine provides that Justices have a duty to participate in cases to avoid a 4-4 decision that simply delays resolution of the issue before the court until another case raises the same issue. Recusal is less of a problem in the federal courts because there are other judges available to sit in cases when a judge is disqualified, but the Supreme Court does not have a back-up bench of Justices ready to participate when a Justice strikes out with recusal.
The problem is that the duty-to-sit doctrine allows the Justice who is alleged to have violated ethical rules to be the judge on whether he/she needs to be recused from the case based on his/her personal opinion.
Here's the kicker: In 1974, Congress amended the federal ethical statute to switch to an objective standard of would a reasonable person find the justice's alleged conduct requires recusal. But, some justices still base recusal decisions on their own opinion.
Murphy's legislation sets up a process whereby complaints that a Justice has violated the Code of Conduct may be filed with the Court or a panel of the Court, to request a decision about the potential conflict of interest. This is a good change from the current state of allowing a Justice who is alleged to be in violation of ethical rules also be the judge of whether the law requires recusal. However, if the Justices on the panel use the subjective test of the duty-to-sit doctrine, then this legislation will mandate Justices comply with a wider range of ethical rules that will not really be enforced.
The first loophole is what are the ethical principles or rules that a Justice must consider when disqualification from a case is at issue? There is a Code of Conduct for federal judges that does not expressly apply to Justices. Chris Murphy's legislation (Supreme Court Transparency and Disclosure Act) would require that Justices comply with this Code. This is important because the Code of Conduct regulates a wider range of activities than the federal statutory ethical rules for Justices. For example, the Code makes it clear that judges can not engage in certain political activity, such as attending events "sponsored by a political organization," which is defined broadly to include groups affiliated with a political party and entities whose principal purpose is advocacy for or against political candidates.
The Murphy legislation may not render compliance with ethical rules more likely due to the second loophole involving the decision-making process used by Justices to determine whether recusal from a case is required based on the ethical rules. For decades, Justices have been subject to the federal statute on ethical rules yet over the years we have seen Justices reject recusal on cases that many believed raised substantial issues of impropriety.
The escape hatch for Justices is a legal doctrine called "duty to sit" that is a standard or test used by judges when evaluating the ethical rules to determine whether recusal is required. This doctrine was intended to remind judges that they should not use recusal as a means to essentially transfer controversial cases to other judges due to concerns of how cases might influence appointments or campaign donations when judges are elected. Thus, judges should not use a "weak argument for recusal" to avoid "demanding, time-consuming, or controversial cases" or otherwise shirk their responsibility to hear cases for "political or personal reasons."
Another factor in the recusal decision-making process is whether the Justice uses a subjective or objective test to determine whether he or she must be recused.
Initially, the federal statute provided that a justice must be recused if he/she has a substantial interest in the case such that it would be improper in his/her opinion to sit on the case. This provided justices with a loophole of a personal belief that he or she could maintain impartiality even when he or she had a substantial financial interest in the outcome of the case.
The duty to sit doctrine also encouraged judges who were faced with a close question on disqualification to resolve the issue in favor of participating in the case. Judges were obligated to hear cases "unless there is a compelling ground for disqualification", which is contrary to promoting "public confidence in the impartiality of the judicial process."
Outrage Over Justice Rehnquist's Participation in Domestic Spying Case Led to Changing The Law
Rehnquist cast the deciding vote in a 5-4 decision that favored a government domestic spying program of political groups opposed to the Vietnam War. As the head of the Office of Legal Counsel at the Justice Department, Rehnquist had approved this domestic surveillance program and defended it at a Senate hearing investigating the matter. He had a "personal and professional stake" in reversing a lower court order that would have resulted in a trial on the protesters' claim that the program was unconstitutional. His vote ended inquiry into the program and avoided scrutiny of his role. Had Rehnquist disqualified himself, the "tie vote would have allowed the trial to proceed" and Rehnquist "might have wound up as a defendant."
Justice Rehnquist cited his "duty to sit," maintaining that "it required judges and justices to remain on a case unless the grounds for recusal were compellingly clear and essentially beyond dispute" because disqualification could render the undesirable result of a 4-4 deadlock. Even when Rehnquist did not "participate" in the U.S. v. Nixon case, he reviewed draft opinions, leaving red marks in the draft to highlight what he viewed as key facts or prior cases on the issue of executive privilege.
Congress Responded By Amending Law To Clarify That the Duty to Sit is Based on an Objective Standard
There was so much outrage over Rehnquist rejecting recusal based on this duty to sit that Congress amended the federal statute in 1974 to stop judges from reaching decisions based on their own opinion.
The federal statute now uses an objective standard that justices "shall disqualify" themselves when their impartiality might reasonably be questioned.
In a concurring opinion, the U.S. Supreme Court stated reasonableness is judged from the perspective of a party, the public or a reviewing court. Another court stated that the test is whether a reasonable person knowledgeable about the circumstances would question the judge's impartiality even when no actual bias or prejudice shown.
Even the Bush Justice Dept. recognized that Congress replaced the subjective test to remove the duty to sit doctrine in order to "promote public confidence in the impartiality of the judicial process."
Supreme Court Justices Still Base Recusal on Personal Opinion: Scalia and Cheney
In 2004, Justice Scalia refused to recuse himself from a case involving Vice-President Dick Cheney 3 weeks after he went on a duck-hunting trip with him. The Sierra Club had challenged the alleged participation of unidentified oil industry lobbyists or executives in an energy group led by Cheney to establish a national energy policy. The trial court had ordered disclosure, but the Supreme Court reversed in what essentially was a 5-4 majority ruling.
Justice Scalia used the subjective test that was repealed by Congress:
Since I do not believe my impartiality can reasonably be questioned, I do not think it would be proper for me to recuse.
Scalia explained that he also did not want to give members of the press who criticized this case a veto power over Justices sitting on cases because that would "encourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons."
Erwin Chemerinsky offers a solution that addresses the Justices' reliance on the lack of a back-up bench as a reason for rejecting recusal. Create a procedure so that a retired justice can participate at the Supreme Court in the event a Justice must be recused from the case. For example, in California, "if a state Supreme Court justice is recused, then a Court of Appeal justice fills in." Now, we have 3 retired Justices: Sandra Day O'Connor, David Souter and John Paul Stevens. O'Connor and Souter "continue to actively serve as judges, regularly sitting by designation on U.S. Court of Appeals."
Murphy's legislation would mandate that Justices comply with a wider range of ethical rules than the existing federal statute. However, we also need to remove the Justices' duty-to-sit card by providing a back-up bench of Justices to hear cases given that an increasing number of Justices engage in political activities with right wingers and teabaggers.