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.



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

What happens when federal litigation on related questions booms-as now with Trump executive orders

(Warning: this is a primer, oversimplifications ahead.)

Various people have brought different lawsuits against Donald Trump and his administration, claiming the unconstitutionality and illegality of Trump’s executive orders restricting travel, colloquially known as “the Muslim ban.”  Because these lawsuits raise federal constitutional questions and claim Trump has violated federal statutes, the cases have all been brought in federal court. But there isn’t just one big “federal court.” There is the federal court system. It has both a horizontal and a vertical dimension.  Horizontally, the federal judicial system is divided into circuits and then sub-circuits. When a plaintiff sues in federal court, she starts in a trial court in a particular sub-circuit. Which one usually depends upon either where she resides or where the injury she is alleging happened. When a cause of harm manifests in many places-like a nationwide ban on immigration ordered by the President-it often triggers multiple suits, each one brought by a different plaintiff or group of plaintiffs seeking relief for the specific injury the harmful conduct has caused her or them. Because of differences in the factual circumstances and differences in the legal theories each plaintiff sues upon, the initial trial court decisions at the horizontal level will vary in meaning even if all of them temporarily restrain the governmental action in question.

As trial court orders are appealed, the vertical dimension of the federal judicial system kicks in. A federal district court judge’s decision can be appealed. If it is, the case is generally reviewed by a panel or subset of that district’s appellate judges. For example,  a decision of the court in the Western District of Washington, in Seattle, can be appealed to the Ninth Circuit (not every trial court order or decision is immediately appealable, but for purposes of this discussion, I am oversimplifying). When that subset or panel rules, the losing party can request review of the entire group of appellate judges for the circuit (en banc). Finally, a party who loses a case upon en banc review can petition for review by the U.S. Supreme Court. There is no right to Supreme Court review. The Court decides whether to take any given case.

In a situation like the current one, where the losing party (Trump in his official capacity and the Executive Branch officials implementing the orders) is the same across the original trial court orders, whether and which vertical next moves are made are the choice of the losing party. The Department of Justice, which represents the Executive Branch of the U.S. Government, has to decide which orders to appeal, considering the content or significance of an individual case and the likelihood of winning on appeal. So far, Trump’s DOJ has fought, and won, one effort to renew a TRO (not an appeal of the original TRO), in Massachusetts; and today has decided to appeal the most wide-reaching and, in my opinion, forceful ruling staying the executive orders, which was issued in Seattle, by the Judge James Robart of the Western District of Washington State. Judge Robart had scheduled argument as to whether to make the temporary restraining order permanent, but since the Executive Branch has decided to appeal the temporary order those arguments may be postponed.

Meanwhile, the government may file appeals in other cases in circuits other than the Ninth , and the plaintiffs in Massachusetts (who lost the renewal of the TRO) may decide to appeal that ruling. If there are simultaneous appeals proceeding vertically, the different circuits could end up with different results on the constitutionality or legality of the Executive Orders, in what is called a circuit split. Sometimes the Supreme Court decides to consolidate several appeals from the circuits to resolve a split, sometimes the Court chooses one case because deciding it would effectively decide the split, and in some instances (though certainly not this one), the Supreme Court does not resolve a circuit split, meaning that the opinions of the appellate courts in each circuit control the law in that circuit.

Scholars and analysts have much to say about the pros and cons of the horizontal and the vertical dimensions of the federal judiciary. Setting aside these larger debates, what matters for now is whether there will be a relatively quick decision at the appellate level of any circuit and then whether the loser will appeal the case to the Supreme Court and then whether the Supreme Court takes that case or waits to see what, if any, splits or consensus emerges among the various circuits.

Should Trump withdraw the Executive Orders or should Congress take action to negate them, the current wave of lawsuits would stop or stall. The federal courts would not become involved again unless or until the Executive promulgated new orders which could be litigated or the Executive chose to challenge the constitutionality of any Congressional action that might be taken.

What happens when federal litigation on related questions booms-as now with Trump executive orders

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.

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

Emoluments Clause Violation Cited in New Complaint Filed Against Muslim Ban EOs

A new complaint alleging injury to specific plaintiffs – U.S. citizens and their Yemini relatives – has been filed in federal district court in California. This complaint adds an interesting ingredient to those already filed against Trump’s Muslim ban Executive Order: It specifies that Donald Trump’s breach of the Emoluments Clause directly motivated his decision about which countries to include in (and exclude from) the Executive Orders banning entry into the U.S. If this ground of the complaint is ultimately upheld, and the case is decided against Trump on this basis, it would establish in federal court that Donald Trump’s unconstitutional violation of the Emoluments Clause is directly harming U.S. citizens. That’s some hefty “ifs” and we won’t have resolution of the case any time soon. But just spelling out how Trump’s unconstitutional acceptance of gifts and favors from foreign entities is influencing his administration, and causing harm to specific individuals, shows how private individuals might well have standing to sue Trump on this issue.

Below, I’ve annotated the complaint with non-lawyer readers in mind. I’ve paid special notice to the development of the grounds and argument connecting Trump’s breach of the Emoluments Clause, the content of his Muslim ban Executive Orders, and how that combination yields discrete injury to distinct individuals.

Emoluments Clause Violation Cited in New Complaint Filed Against Muslim Ban EOs