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.

 

 

Tech companies amicus brief in 9th Circuit case of Washington v. Trump, annotated, explained

On Friday, February 4, the Department of Justice filed a brief in support of an emergency administrative stay of trial court Judge James Robart’s temporary restraining order blocking Donald Trump’s executive orders implementing a Muslim ban. That same day Ninth Circuit appellate court Judges Canby and Friedland denied the request for an immediate freeze on the TRO, and requested briefing from both plaintiff-appellees (the states of Washington and Minnesota) and the defendant-appellants (Trump and other executive branch officials, all represented by the DOJ). Appellees’ brief is due Sunday, February 5, at 11:59 pm PST.  Appellants reply is due Monday, February 6, 2017 at 3 pm PST. (Information at the Ninth Circuit’s web page dedicated to the case).

Meanwhile, an important, interesting, and well-crafted amicus brief on behalf of 97 tech companies, listed in Appendix A in the brief, below. I expect that Washington State will tackle the government’s interpretation of precedent and federal statutes in some detail. The job of an amicus brief is slightly different. A amicus writes as a “friend of the court”, stating its interest in the case and offering legal support specifically in favor of its interest. A good amicus brief is selective, surgically intervening in the swirl of arguments and counterarguments  made by the main parties to the suit raise.

As I have tried to illustrate with the annotations below, this is precisely what the tech companies’ amicus brief has accomplished. The companies’ brief pinpoints the economic threats to and disruptions of American business caused by the executive order, specifically in virtue of the ways in which it is illegal and unconstitutional. The brief argues that an unreasonable, arbitrarily enforceable, potentially open-ended executive order violates both Congressional statutes and Constitutional provisions requiring that immigration be handled in accordance with Due Process, Equal Protection, general reasonableness standards, and non-discrimination on the basis of national origin. To highlight how the technology amicus brief does this I have annotated the copy below. The actual brief begins at page 7 of 53; the earlier material states the argument for the court to accept the brief.

TRO opinion in Washington State litigation against Muslim ban EOs, explained and annotated

The state of Washington was the first state to file its own lawsuit alleging the unconstitutionality of the Trump bans on immigration. This development was significant because states are uniquely positioned to challenge unconstitutional executive orders. They have standing to litigate on behalf many of their affected  residents (under the U.S. extension of parens patriae doctrine). They also have standing to litigate the unique harms that they as states can suffer, e.g. injury to state university systems or state economic wellbeing. Today, Judge James L. Robart, a federal district court court judge in the Western District of Washington State, issued a temporary restraining order (TRO) against the Trump executive orders and provided an opinion that tees up the sort of ongoing litigation likely to wind up in the U.S. Supreme Court. Below is a copy of Judge Robart’s opinion in support of the TRO. I have highlighted passages to aid in following Judge Robart’s reasoning and indicated with green check marks especially significant findings has made.

Adding 1st Amendent, RFRA to fight against “extreme vetting”: Complaint in Massachusetts Federal Court annotated

Late yesterday, another complaint was filed seeking injunctive relief against the executive orders prohibiting reentry into the US of lawful US residents who are also foreign nationals from certain countries. Below is the complaint filed in federal district court in Massachusetts, annotated by me to highlight legal bases for declaring these orders unconstitutional and unlawful that were not already asserted in other complaints filed, such as the one in federal court in New York. The Massachusetts complaint asserts that the EOs violate the First Amendment and the Religious Freedom Restoration Act. By providing additional bases for overturning the EOs, this complaint paves the way for the broadest possible number of objections to be considered by higher courts in the upcoming fights over the final status of the orders.

The legal fight against Trump’s “extreme vetting” executive orders – Annotated writ of habeas corpus, complaint seeking injunctive relief, class certification

Today, January 28, 2017, begins the legal battle against the Trump administration’s treatment of refugees and immigrants to the United States of America. Last night, refugees with valid visas were detained and held at John F. Kennedy International Airport. Early this morning their lawyers filed suit on their behalf. Here is copy of the complaint, annotated by me. The annotations are meant to guide non-lawyers through the most legally significant parts of this first filing in what will be a contested lawsuit.