Top U.S. Judge Addresses Ethical Issues

Chief Justice Defends His Colleague's Approach to Recusal
The National Law Journal by Tony Mauro  -  January 4, 2012

WASHINGTON, D.C. - Chief Justice John Roberts Jr., in his year-end report on the state of the federal judiciary, last week offered a vigorous defense of the U.S. Supreme Court's handling of ethical issues. He also said he has "complete confidence in the capability of my colleagues to determine when recusal is warranted."  Though he said he was not specifically addressing "ongoing debates" about justices' ethics, Justice Roberts was clearly responding to recent calls for applying the judicial code of conduct for lower courts to U.S. Supreme Court justices. Those proposals have been triggered by criticism from both ends of the political spectrum of Justices Elena Kagan and Clarence Thomas for participating in the upcoming cases challenging the constitutionality of the Affordable Care Act. Critics have pointed out that justices have no rules governing their recusal actions, and no one reviews their decisions to stay in or bow out of a case.  Justice Roberts' discussion of Supreme Court ethics was extraordinary, taking up all but the final two paragraphs of his 12-page report. He usually touches on several topics facing the federal judiciary in general, rather than focusing on the high court. His report on the workload of the federal courts this year is in an appendix.  In an illuminating opening section, Justice Roberts drew a connection between the "Black Sox Scandal" that hit major league baseball in 1920 and the early formation of ethics rules for federal judges. Team owners, seeking to restore confidence in baseball, chose Chicago federal Judge Kenesaw Mountain Landis as baseball commissioner. Mr. Landis resigned his judgeship to take the job, but Justice Roberts said controversy over whether he should resign led the American Bar Association to create a commission on judicial ethics, headed by Chief Justice William Howard Taft. That eventually resulted in adoption of ethical canons and a code of conduct created by the Judicial Conference.  But Justice Roberts stressed that under the structure of the U.S. Constitution, the Judicial Conference has no formal jurisdiction over the Supreme Court. In Article III, the Constitution created "one Supreme Court" explicitly, but said Congress could create inferior courts as it sees fit. Congress created the appeals and district courts, and it also established the Judicial Conference to set policy for those courts. As a result, Justice Roberts said, the Judicial Conference and its committees "have no mandate to prescribe rules or standards for any other body." Nonetheless, Justice Roberts said, Supreme Court justices consult the conference's code of conduct, as well as other sources including their colleagues and the Court's own legal office.  Justice Roberts also said that Congress has directed justices and judges alike to file financial disclosure reports and imposed limits on gifts and outside income. "The Court has never addressed whether Congress may impose those requirements on the Supreme Court," Justice Roberts added. "The justices nevertheless comply with those provisions." He said the Court in 1991 adopted an "internal resolution" agreeing to follow Judicial Conference regulations.

As for recusals, Justice Roberts said justices follow the "same general principles" used by lower court judges, but are also influenced by the "unique circumstances" of the Supreme Court. He explained that when lower court judges recuse themselves, they are easily replaced by other judges, and their decisions can be reviewed by a higher court. But at the Supreme Court, when a justice is recused, no one else can replace him or her, and Justice Roberts said the Court "must sit without its full membership. A justice cannot withdraw from a case as a matter of convenience or simply to avoid controversy."  In addition, Justice Roberts suggested it would be inappropriate for justices to pass on whether a colleague should or should not recuse. He wrote, "It would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its members may participate."  In expressing his confidence in his colleagues to recuse when warranted, Justice Roberts said, "They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. …We are all committed to the common interest in preserving the Court's vital role as an impartial tribunal governed by the rule of law."  He also wrote that "at the end of the day, no compilation of ethical rules can guarantee integrity. Justices must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic."  Justice Roberts ended his report by expressing gratitude to federal court judges and staff "for their selfless commitment to public service in the face of demanding dockets and tightened budgets." He also thanked Congress for its "careful consideration of the judiciary's financial needs."  Tony Mauro, who covers the U.S. Supreme Court for The National Law Journal, an affiliate, can be contacted at tmauro@alm.com.