With All Due Respect

[On May 7, 2024, Right2TheCity selected this piece as one of its “EXTERNAL MEDIA” posts.  I am extremely grateful to its staff for the honor.  If you are not already familiar with this informative publication – with the motto “A battle cry to remake the city in our own image” – I recommend that you check out its policy declaration.]

Whiffs of arrogance and hypocrisy permeate the code of conduct recently adopted by the U.S. Supreme Court. [See USSC Code-of-Conduct-for-Justices_November_13_2023]

The stock photo of the court’s justices accompanying the reports of the new code – showing the nine members wearing black robes and big smiles – reminds me of a phrase used by the Buffalo News editorial board in 2022 when describing New York’s system for selecting judges: “[I]t stinks and the smell clings to the robes of the winners.”

As noted by national pundits, the code of conduct’s biggest deficiency is the absence of a mechanism to enforce its rules. As a result, the public has little reason to believe that the ethical standards will be followed.  [See, for example, Ruth Marcus column 11-14-2023.]

But there’s a more subtle and insidious flaw that further erodes trust in our nation’s highest court, the code’s approach to “disqualification” or “recusal.”

Historically, judicial codes of conduct require that judges disqualify themselves from hearing a case if their impartiality might be reasonably questioned. The new set of rules does include that standard: “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.” But it then deceptively proceeds to make a virtue out of not recusing oneself.

The first step in this stratagem is to include a presumption of impartiality and a so-called “duty to sit,” neither of which is found in the ethic rules applicable to other federal court judges: “A Justice is presumed impartial and has an obligation to sit unless disqualified.”

The scheme is then progressed by a broad expansion of “the rule of necessity.” This principle is meant to be utilized in rare circumstances where a judge, who otherwise should be disqualified from hearing a case, is compelled to hear it out of “necessity” because no other judge is available to preside over the matter.

By sleight-of-hand, the Supreme Court renders the term “necessity” all but meaningless, but not directly in the ethics rules themselves. They innocuously state: “The rule of necessity may override the rule of disqualification.” The questionable task of expanding the concept of “necessity” is left to the “Commentary” that follows the code of conduct.

Those comments include the following expression of arrogance, “The loss of even one Justice may undermine the fruitful interchange of minds which is indispensable to the Court’s decision-making process.” The Commentary then provides examples of the supposed “distorting effect” of recusal, and reminds the justices that “the loss of one justice” is effectively the same as voting against a petitioner seeking to have a case heard at the nation’s highest court, or an appellant seeking to overturn a lower court’s decision.

By expanding the rule of necessity, the code of conduct frees justices with an agenda to push to disregard concerns over an apparent conflict of interests whenever they are displeased, after counting votes, with the practical impact of recusal.

Time to dry-clean those robes.

With All Due Respect,

Art Giacalone