Re: Chief Justice Roberts and Recusal

by Carrie Severino

Chief Justice John Roberts’s “2011 Year-End Report on the Federal Judiciary” is being characterized by some as a defense of decisions by Justice Thomas and Justice Kagan to participate in the Court’s Obamacare case. I agree that at least one paragraph in the twelve-page missive was directly aimed at defusing that particular controversy, but I think its primary purpose was to respond to the usual suspects on the left who seem committed to persuading the public that the Court is some sort of law-free adhocracy where recusal is concerned.

Specifically, the chief justice provided a summary of the current recusal process and its development — complete with historical reference to the Black Sox Scandal — and an articulate response to calls for the Court to adopt new ethical code. The Court’s critics would essentially weaponize the recusal process by giving some other entity or set of individuals the ability to force justices to recuse themselves in particular cases, so I think it was reasonable for the chief justice to explain why such a step is unnecessary and dangerous (if not unconstitutional).

Toward the end of the report, the chief justice wrote:

I have complete confidence in the capability of my colleagues to determine when recusal is warranted.  They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties.  We are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law. 

This paragraph is being interpreted as a substantive defense of Justices Thomas and Kagan. But I don’t think the two cases are analogous and I don’t think the chief justice said anything that should lead us to believe he thinks they are.

It is possible that the chief justice asked Justice Kagan to disclose all relevant facts and that he is now comfortable with her decision to participate in the Obamacare case. (Or that she was not so forthcoming because some of the relevant facts may be subject to legal privilege — which, as I have pointed out, should itself require her recusal.) It is also possible that they have not had such a conversation and that Roberts has not examined the matter in any detail. 

Well, okay, but how about Justice Thomas? Unlike Justice Kagan’s recusal problem, which was entirely self-inflicted, the debate over Justice Thomas’s recusal essentially boils down to whether you believe his wife has been too free in the exercise of her right to free speech. Without repeating all of the arguments that have been made on this blog and elsewhere, let me simply say that a large number of prominent lawyers on the right and the left (including Justices Breyer and Stevens) have come to Justice Thomas’s defense. In contrast, at least two liberal law professors (Jonathan Turley and Eric Segall) and one legal ethicist (Professor Ronald Rotunda) have stated that Justice Kagan should recuse herself. 

In short, the prima facie case for Justice Kagan’s recusal is more logically and legally sustainable by a country mile.

But I don’t think the Chief Justice intended to make such a judgment call with regard to Justice Kagan or Justice Thomas. If anything, he was defending the current recusal process and conveying two messages that relate to this ongoing controversy: (1) H trusts his colleagues to live up to the standard ethical obligations that apply to federal judges, and (2) justices need not recuse to avoid unfounded controversy, but only where there is a factual basis for recusal. Pretty standard stuff coming from a chief justice.

I agree with him: On the whole, the current recusal process works. If anything needs repair, it is Justice Kagan’s sense for how her decisions reflect on that process and the institution she serves. She is partially responsible for forcing a very cautious and understated chief justice to make an official statement defending the Court’s integrity. If anyone else is responsible, it is the everything-is-political Left apparatchiks who are determined to destroy the conservative justices, especially Justice Thomas, even if that means undermining the Supreme Court’s credibility in the process. 

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