As I wrote before, the cascade of pseudo-ethics attacks on the Supreme Court had never really been about ethics, but rather intimidating a Court that the Left despises for being faithful to the Constitution. The Court’s long-observed practice has been to follow the code that binds other federal judges along with historic practice, but for good measure, the justices issued a “Statement on Ethics Principles and Practices” last April that elaborates on recusal practices and then a Code of Conduct in November. As I predicted, the Court’s critics and their dark-money backers were not satisfied. But even beyond arguing that the Court didn’t go far enough, today’s critics of the Court often misrepresent ethics guidelines, incorrectly suggesting that they require a justice to note their reason for recusal.
Justices routinely note their recusals on the orders list that the Court releases, usually weekly, if they are unable to participate in a particular case—whether it be for a conflict of interest or personal or professional relationships with the parties or attorneys involved in the proceedings. Recusals happen with some frequency and can be easily identified on the orders list by a familiar boilerplate: “Justice X took no part in the consideration or decision of this petition.”
Rather than read the applicable guidelines carefully, Mark Joseph Stern has repeatedly attacked Republican-appointed justices for committing faux offenses. Last May, he accused Justice Samuel Alito in Slate of violating the rules by recusing without explanation. His commentary was reposted on X by the Soros-funded Citizens for Responsibility and Ethics in Washington (CREW).
Stern took to criticizing Alito on X for the form of his recusal in another case in January, when he stated that Justice Ketanji Brown Jackson, “per the court’s ethics guidelines, noted the reason for her recusal. Alito, refusing to follow those guidelines, did not.” An Above the Law post by Joe Patrice pointed to Alito as the answer to the question, “Guess Who Recused Themselves from Recusal Protocol?” And following five additional recusals last month, Stern posted: “Kagan and Jackson followed the court’s new ethics ‘guidelines’ and provided a reason for their recusal. Roberts, Alito, and Barrett did not.” MSNBC’s Jordan Rubin piled on in a similar vein and asked whether the three Republican-appointed justices “are hiding something?”
These criticisms are demagogic lies. Nowhere are the justices required to state the reason for a particular recusal. In fact, the Statement on Ethics Principles notes that “[i]n some cases” in which the reason for recusal is not obvious, “public disclosure of the basis for recusal would be ill-advised. Examples include circumstances that might encourage strategic behavior by lawyers who may seek to prompt recusals in future cases.” This is especially true in highly charged cases in which the temptation to try to “stack” the Court by subtraction is strongest. In the absence of such concerns, “a Justice may provide” a summary or extended explanation for any recusal decision (emphasis added), but that is not required.
The Code of Conduct even acknowledges that there are times where “the rule of necessity may override the rule of disqualification.” That is to say, recusing out of an abundance of caution can severely cripple the functionality of the Court. The Statement on Ethics Principles explains that because the Supreme Court, unlike lower courts, cannot substitute another judge in the event of recusal, “Justices have a duty to sit that precludes withdrawal from a case as a matter of convenience or simply to avoid controversy.” Justices take recusal questions very seriously, and that is one reason why each justice is responsible for running his or her own recusals.
This reality should be kept in mind whenever the leftist critics of the Court lob ill-informed, brazenly partisan cheap shots at justices they disagree with in an effort to advance their pseudo-ethics gamesmanship.