By David B. Rivkin, Jr., and Lee A. Casey
September 16, 2023, in the Wall Street Journal
Justice Samuel Alito has refused a demand from Senate
Democrats that he disqualify himself from a pending case because of an
interview in this newspaper. One of us (Mr. Rivkin) is on the legal team
representing the appellants in Moore v. U.S. and conducted the interview
jointly with a Journal editor.
In a four-page statement Sept. 8, Justice Alito noted that
other justices had previously sat on cases argued by lawyers who had
interviewed or written books with them. “We have no control over the attorneys
whom parties select to represent them,” he wrote. “We are required to put
favorable or unfavorable comments and any personal connections with an attorney
out of our minds and judge the cases based solely on the law and the facts. And
that is what we do.”
The recusal demand came in an Aug. 3 letter to Chief Justice
John Roberts signed by Senate Judiciary Committee Chairman Dick Durbin and the
committee’s other Democrats, excluding Georgia’s Sen. Jon Ossoff. It is part of
a campaign against the court’s conservatives by Democratic politicians,
left-wing advocacy groups and journalists whose goals include imposing a
congressionally enacted code of ethics on the high court.
Although there already is a judicial ethics code, propounded
by the U.S. Judicial Conference, it applies only to the lower federal courts,
which Congress established. Proposals to create a Supreme Court code of
conduct—including onerous and enforceable recusal requirements—raise
fundamental issues of judicial independence and separation of powers. Chief
Justice Roberts noted in NFIB v. Sebelius (2012) that the justices have a
“responsibility to declare unconstitutional those laws that undermine the
structure of government established by the Constitution.”
Congressional imposition of such rules would do precisely
that. Justice Alito put the point strongly in the Journal interview. “Congress
did not create the Supreme Court,” he said. “No provision in the Constitution
gives them the authority to regulate the Supreme Court—period.” To be sure,
Article III authorizes Congress to regulate the court’s appellate jurisdiction,
and Justice Alito followed his observation with this caveat: “Now, they have
the power of the purse, so they have the ability to take away all of our money
if we don’t do what they want. So as a practical matter, they have a lot of
authority. But as a constitutional matter, they don’t.”
The Supreme Court’s independence is critical to America’s
constitutional structure. As James Madison observed in his notes of the
Constitutional Convention, “if it be essential to the preservation of liberty
that the Legislative Executive & Judiciary powers be separate, it is
essential to a maintenance of the separation, that they should be independent
of each other.”
The political branches—Congress and the president—have
overlapping powers that bear on the same policy issues. They also have
effective tools at their disposal to fight encroachments on their authority. By
contrast, the Supreme Court has the authority only to “say what the law is,” as
Chief Justice John Marshall put it in Marbury v. Madison (1803). For the rule
of law to prevail, the court has to carry out its duties free of any
interference from the political branches. Yet its status as a countermajoritarian
institution with no popular constituency makes it vulnerable to political
attack.
The Constitution protects the judiciary by conferring life
tenure on the justices and other Article III judges. They can be removed from
office only through impeachment and conviction, and Congress is prohibited from
reducing their salaries. Although lawmakers have enacted statutes establishing
procedural and evidentiary rules for the lower federal courts, there is no
constitutional basis supporting such authority over the Supreme Court. And
while Congress first enacted recusal rules for lower courts in 1792, it didn’t
extend them to the Supreme Court until 1948.
Even with respect to the lower courts, Congress doesn’t have
a free hand. Recusal involves a core judicial function—the exercise of judgment
in the same manner as deciding other legal issues. All recusals are determined
case by case, considering the litigants and issues raised. History supports the
premise that this is an inherent part of “judicial power,” belonging
exclusively to the courts. In British and colonial courts alike, recusal
decisions were handled entirely by judges, with no legislative input.
Congress can no more regulate this core judicial function
than it can direct the president’s exercise of his core functions. As the
Supreme Court confirmed in Trump v. Mazars (2020), which involved competing
presidential and congressional claims, the resolution of separation-of-powers
questions must take into account whether one branch of government is using its
power to “aggrandize” itself at another’s expense or to gain some
“institutional advantage.” The current efforts by Senate Democrats, while
clothed in a concern for ethics, are plainly designed to weaken the court and
put it under Congress’s thumb.
There is no evidence that the Supreme Court needs new
recusal rules or has an ethics problem at all. Corruption inherently doesn’t
loom large as a problem for the federal judiciary. The president and members of
Congress must run for election, which requires them to raise campaign money.
Both political branches provide tangible benefits to private parties through
the creation or administration of spending programs and the letting of
government contracts. This creates possibilities for corrupt influence.
Federal judges, by contrast, have life tenure and, as per
Article III, hear only “controversies” that are brought before them. Like the
president and other executive-branch officials, they are subject to impeachment
for bribery or other corrupt acts. But fewer than a dozen jurists have been
removed from office in more than two centuries. Recent accusations of
“corruption” against conservative justices mostly involve their social
activities with friends who have no pending cases before the court and likely
never will. The critics seem untroubled (and rightly so) by similar behavior
from liberal justices.
As Justice Alito’s statement notes, “recusal is a personal
decision for each Justice.” Justices may look to the Judicial Conference’s Code
of Conduct for guidance when considering whether to recuse themselves from a
case. Although the federal statute requiring recusal in certain defined
circumstances applies to the high court, the justices have never ruled on
whether that application is constitutional.
The law, known as Section 455, incorporates standards
anchored in traditional common law, so that they are arguably consistent with
the original public meaning of Article III’s term “judicial power, exercised by
the Supreme Court.” They mostly involve financial or family interests in a
particular case. A judge might recuse himself, for instance, if a relative or a
company in which he owns stock is a party to a case. Justices interpret and
apply the law’s provisions in a flexible enough way to preserve judicial
independence.
That flexibility is illustrated by U.S. v. Will (1980), in
which the justices rejected the proposition that Section 455 obligated the
entire court to recuse itself from hearing an appeal of a lawsuit, brought by
13 federal district judges, challenging the validity of statutes that repealed
previously enacted cost-of-living pay increases for the judiciary. The decision
by Chief Justice Warren Burger invoked “the ancient Rule of Necessity”: Because
every judge had a financial interest in the outcome, a ruling by disinterested
judges was a logical impossibility. Although Justice Harry Blackmun recused
himself, the court held 8-0 that the repeal was constitutional only when it
took effect before the increase did.
Even a single justice’s recusal can be harmful. Justice
Alito’s statement related to Moore v. U.S. cited his “duty to sit,” a principle
Justice William Rehnquist elucidated in a memorandum rejecting a motion to
recuse himself from Laird v. Tatum (1972). Rehnquist noted a consensus among
federal circuit courts of appeals “that a federal judge has a duty to sit where
not disqualified which is equally as strong as the duty to not sit where
disqualified.” That duty, he argued, is even stronger for a justice, whose recusal
“raises the possibility of an affirmance of the judgment below by an equally
divided Court. The consequence attending such a result is, of course, that the
principle of law presented by the case is left unsettled.”
When a judge serving on a lower court is recused, another
judge is assigned to the case and the litigation goes forward. That’s
impossible when a member of the high court is recused. No one can sit in for a
justice. Thus, while lower federal judges generally resolve doubts by recusing
themselves, the opposite presumption is appropriate for the Supreme Court.
In addition, if the duty to sit were weakened, there is a
real danger that litigants would use recusal motions strategically to affect
the outcomes of cases. Public-policy litigation often comes before the court
through test cases, in which litigants have been selected with a view toward
the current or likely position of the federal circuit courts with jurisdiction
over their place of residence or operations. In contentious areas of the law,
those positions may be markedly different, reflecting the balance of judges
with different judicial philosophies on the circuits.
A circuit split is one of the principal reasons why the
Supreme Court will agree to hear a case. In this context, two justices’
recusals could turn a losing case into a winning one. A single recusal and a
tie vote would leave the split unresolved, so that different parts of the
country would be governed under different interpretations of federal law. The
Supreme Court Ethics, Recusal and Transparency Act, which Mr. Durbin’s
committee advanced along party lines in July, would subject the justices’
recusal decisions to review by either their colleagues or a panel of
lower-court judges, creating temptations within the judiciary itself to game
the system.
Liberals should be as concerned as conservatives with
maintaining the court’s integrity and independence, and at least on the bench
they appear to be. All nine justices have signed a “Statement on Ethical
Principles and Practices,” which affirms, among other things, that the justices
have a duty to sit and that the decision to recuse or not is up to each
individually: “If the full Court or any subset of the Court were to review the
recusal decisions of individual Justices, it would create an undesirable situation
in which the Court could affect the outcome of a case by selecting who among
its Members may participate.”
None of this is to deny that the justices should clearly
define their recusal standards or that they should make public the reasoning
for their decisions, as the Statement on Ethical Principles and Practices says
they are free to do. There is value in assuring the public that these decisions
are taken based on rational standards, honestly applied. But that is a matter
for the justices, not Congress.
Messrs. Rivkin and Casey practice appellate and
constitutional law in Washington. They served at the Justice Department and the
White House Counsel’s Office in the Reagan and George H.W. Bush administration.
Source: https://www.wsj.com/articles/the-supreme-court-and-the-duty-to-sit-recusal-standards-ethics-durbin-alito-93c4dbb6