When Supreme Court Justices May Have to Disqualify Themselves from Hearing a Case

 

Today, the Daily Beast published a short story about Ginni Thomas, Justice Clarence Thomas’s wife, writing to a listserve to request assistance setting up a tool for “daily text capacity for a ground up-grassroots army for pro-Trump daily actions.” According to her message, she “met with a house load” of  “grassroots activists … who wish to join the fray on social media for Trump and link shields and build momentum….[w]e want a daily textable tool to start…” Ms. Thomas’s model, according to her email is Daily Action, covered by the Washington Post here. Below is the background to the brief remarks I made in the Daily Beast story.

Judicial recusal or disqualification as it is more aptly called is a sensitive topic. Judges are people in the world, they have friends and family and hobbies and interests, all of which can inform how they view cases that come before them. This is as true of Supreme Court Justices as any other judges. Judges’ spouses are entitled to have political views, to express them, to be politically active, and/or to hold elected or appointed office. A judge’s spouse may certainly create and deploy an app to support specific Executive branch orders and actions. But if one of those orders or actions becomes the subject of litigation, a legitimate question arises about whether the judge can decide the lawfulness or constitutionality of that order or action without an “appearance of impropriety” if not actual partiality.

U.S. federal law requires that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As explained by experts from the Federal Judicial Center:

Section 455(a) requires disqualification for the appearance of partiality (i.e., when a judge’s “impartiality might reasonably be questioned”) as compared to § 455(b)(1), which requires disqualification for actual partiality (i.e., when a judge “has a personal bias or prejudice toward a party”).

So, if a reasonable ordinary citizen might think reasonably think that a judge cannot be impartial in a particular case, the judge should disqualify himself or herself.

While a Supreme Court Justice may disqualify himself or herself on his or her own motion (sua sponte, in legal parlance), more usually a party to a lawsuit makes such a motion. This happened in Cheney v. United States District Court, where Justice Antonin Scalia chose not to recuse himself on grounds that his social outings with Vice-President Cheney did not create even an appearance of partiality and on the grounds that it would be improvident to reduce the court to an even number of justices in the case because of the possibility of a tied decision. Note, Justice Scalia did not complain that the request that he recuse himself was frivolous or ungrounded. Indeed, he took it seriously enough to explain his reasons for denying it.

If any of the cases contesting the lawfulness or Constitutionality of specific executive orders or conduct of Donald Trump come before the Supreme Court, and a spouse of a Justice is mobilizing a grass roots army in favor of that specific order or conduct, a reasonable citizen might well reasonably think that the Justice cannot decide the case impartially. Furthermore, if the court consists of eight members, the need to avoid the possibility of a tie would militate in favor of an otherwise warranted recusal.

Nobody can make a Supreme Court Justice disqualify himself or herself from participating in any given case. And a Justice and his or her spouse might decide that the spouse should feel free to help grass roots armies opposing the left and supporting the President even if that would later ethically require the Justice to disqualify himself or herself in a particular case. But in an era where the President of the United States continually attacks the legitimacy of the judiciary, all parties to the judicial process should be aware of prevailing ethics laws and standards, and seek to meet and exceed them.

 

 

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When Supreme Court Justices May Have to Disqualify Themselves from Hearing a Case