Today’s New York Times carries a house editorial addressing the matter of recusal by Supreme Court justices. Unfortunately, the editorial gets some basic things wrong, including:
1. The editorial refers to the Supreme Court’s “lack of a recusal policy,” as though there were no rules governing recusal. In fact, federal statutory law (28 U.S.C. § 455) sets forth binding rules that apply to the justices. (How those rules apply isn’t always clear, but that’s a different matter.)
2. The editorial refers to a supposed proposal for “how the court should solve its recusal problem”: “justices should follow the ethical code that applies to other federal judges.” But on matters of recusal—as distinct from other ethical matters—justices are formally governed by the same rules as other federal judges. (To be precise, both Supreme Court justices and lower-court judges are governed by the rules set forth in 28 U.S.C. § 455. Lower-court judges are also formally subject to the Code of Conduct for United States Judges, which on the matter of recusal—see Canon 3.C—restates nearly verbatim the provisions of 28 U.S.C. § 455.)
3. The editorial asserts that “leav[ing] each justice to decide whether” to recuse “plainly violates the age-old principle” that “no one should be a judge about his or her own case.” But lower-court judges, whose practices the editorial posits as a model, also make their own recusal decisions (as well as other decisions about how ethics rules apply to them). So it would seem that the “age-old principle” doesn’t extend (and, I would guess, has never extended) as far as the editorial suggests.
4. The editorial refers to a request that Justice Scalia “recuse himself from an upcoming case about alleged gender bias at Wal-Mart Stores because his son is co-chairman of the labor and employment practice at the law firm representing the company.” The editorialists are apparently unaware that in 1993 seven members of the Supreme Court (Rehnquist, Stevens, O’Connor, Scalia, Kennedy, Thomas, and Ginsburg) issued a Statement of Recusal Policy in which they interpreted 28 U.S.C. § 455(b)(5) not to require recusal when a justice has a close relative who is merely “a partner in a firm appearing before us” so long as that firm has provided “written assurance that income from Supreme Court litigation is, on a permanent basis, excluded from our relatives’ partnership shares.” (Chief Justice Roberts adopted the same policy in 2005.) Given how frequently the law firm at issue litigates in the Supreme Court, it would seem clear that it has provided that written assurance and that there is therefore no reason to expect Scalia to recuse himself. More to the point, contrary to what the editorial implies, this is a matter on which those justices who have close relatives who are practicing lawyers (and who therefore have had reason to address the matter) have adopted a uniform interpretation of the applicable rule.
More broadly, I will observe that the discussion of recusal and other ethics issues would be improved if many of the most vocal critics would make a serious effort to get the facts and law right.