7. “The rule of necessity may override the rule of disqualification.”
The rule of disqualification says that a judge must sit out a case if they are not, or appear not to be, impartial and unbiased. The rule of necessity says that if there is absolutely no other judge to hear a case, an otherwise disqualified judge can participate. At least, that’s what “necessity” means to most judges. But because the Supreme Court has a rather high opinion of itself, it has twisted the rule of necessity to mean it’s more important for a potentially disqualified justice to stay on a case rather than have only eight justices participate. They’ve applied the rule of necessity this way even though history reveals that an even number of justices would not necessarily bring the court to an impasse: The court has functioned for months, even years, with a vacant seat. We’d be happy to have our reading of this sentence proven wrong, but this seems like a way of saying the justices don’t have to recuse unless they feel like it.
8. “Canon 3B addresses the inherently judicial function of recusal” (emphasis added).
This one is subtle, but it could be a sign that the justices are out to stymie Congress’s efforts to pass judicial ethics laws. Congress has a fair amount of authority over the mechanics and logistics of the Supreme Court: It sets the number of justices and the day the court’s term begins, lays out some basic disclosure rules, and even controls the amount of discretion the court has over all but a few elements of its docket. But the Constitution does not grant Congress judicial power, so Congress cannot, for instance, control how a justice rules in any given case. As Congress has dedicated more time in the last several years to strengthening the court’s ethics rules, some (including Justice Samuel Alito) have claimed that ethics laws impermissibly encroach on the court’s judicial powers. Against that backdrop, this line is particularly concerning. Congress has set recusal rules through statute for nearly a century, but it seems the justices may be laying the groundwork for weakening those efforts.
9. “The Justices follow the same general principles and statutory standards for recusal as other federal judges, including in the evaluation of motions to recuse made by parties. But the application of those principles can differ due to the effect on the Court’s processes and the administration of justice in the event that one or more Members must withdraw from a case.”
In other words, “we follow the same rules as other justices, but because we are unique, we will actually bend the rules for ourselves.” Consider the path not taken: The justices could have recognized that they are the most powerful and visible jurists in the country, and because they feel it is important for all nine of them to participate in each case they rule on, they would go above and beyond to ensure their behavior is beyond reproach and conflicts would arise in only the rarest of circumstances. That would have made the court a model for ethics. But instead, the code of conduct lowers the bar, so the justices can step over it without breaking their strides.
10. “A Justice should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”
This one is perplexing: Why does the code limit membership in only some discriminatory organizations? The Equal Employment Opportunity Commission, for instance, protects Americans from employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age, disability, and genetic information. The justices should not be allowed to join discriminatory organizations, nor should they appear before them. After all, these are the judges responsible for ensuring equal justice for all, and use of the facilities or benefits of such entities can be viewed by the public as endorsement of such discrimination. This is an area where the code of conduct for other federal judges needs to be updated as well, and the Supreme Court should have led the effort rather than simply adopting existing, inadequate language.
There are some glaring omissions from the justices’ new code, too. It doesn’t call for publication of recusal decision-making, which could go a long way to creating more consistent and appropriate decisions to sit out a case. Nor does it suggest that recusals ought to be decided by someone other than the justice whose impartiality is in question. Given what we now know about sources of spousal income at the court and the serious ways in which that could present a conflict of interest, the court could have also included more robust reporting requirements on spousal income and, if relevant, clients. And, as many have already pointed out, the court fails to address a single way in which this “binding” code might be enforced.
This is a missed opportunity of massive proportions. It appears conspicuously well-timed to throw off what was becoming a very serious Senate investigation into corruption at the Supreme Court. Far from proving that the court has its house in order, this disappointing code of conduct should spur everyone who cares about an ethical Supreme Court to redouble their efforts.