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Supreme Court justices, recusal, and the Code of Conduct for United States Judges

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Supreme Court Justices

In August of 2017, Supreme Court Justice Neil Gorsuch spoke at an event at the Washington D.C. Trump Hotel.

Due to various concerns that his appearance at this event raised various questions of judicial ethics, a flurry of news reports ensued, some of which criticized Gorsuch for having participated in the event.

In 2004, Vice President Dick Cheney went on a hunting trip with Justice Scalia at a time when  Cheney had a matter pending in his official capacity before the Supreme Court.

Again, immediately after this event took place, various news and other sources questioned whether it raised judicial ethics concerns.

While this article takes no position on the ethics issues if any that are implicated in these events, it is instructive to explore how the Supreme Court justices address matters of judicial ethics that may from time to time confront individual members of the Court.

Supreme Court Justices and the Code of Conduct for United States Judges

In 1973, the Judicial Conference of the United States adopted the Code of Conduct for United States Judges.  This code, while binding on lower federal court judges, does not apply to the Supreme Court Justices.  The introduction to the Code states:

This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the “Compliance” section. The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code.

As Justice Roberts wrote in his 2011 Year End report on the Federal Judiciary:

…The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body…

The Judicial Conference also issues judicial ethics opinions.

This informative article, Why the Supreme Court isn’t compelled to follow a conduct code, explains why the Code is not applicable to the Supreme Court Justices.

Supreme Court Justices and Recusal

Justice Roberts also described how the Justices decide whether to recuse themselves from certain matters:

…The Justices follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court….

He also cited to Title 28 Section 455 of the U.S. Code that addresses judicial disqualification under circumstances where the judge’s impartiality might be questioned or where he/she has a personal bias or prejudice.

Roberts noted that in the lower courts, judges who decide to recuse can always be replaced by another judge, and that their decision is subject to review by a higher court.  Such is not the case with the Supreme Court, since there is no higher court to review their decision, and no other Justices to take their place.  Consequently, in the event that a Justice did decide to recuse, the Court would have to sit with less than a full panel.

Roberts also noted that if the other justices were permitted to review an individual Justice’s decision not to recuse, this could have the effect of giving the other justices the power to determine who would be able hear the affected cases.  Therefore, Justices make their own determination, sometimes using the Code and other available authorities for guidance, and their final decision is not subject to review.

Some commentators have advocated that the Court should be subject to a code of conduct or should in the alternative have a formal process for review when an individual justice makes a determination not to recuse.

Further reading

Judging Neil Gorsuch: The justice’s speech at the Trump Hotel isn’t unethical. He should skip it anyway, Slate, August 29th, 2017.

Northam, Supreme Court Justice Neil Gorsuch’s Speech At Trump’s D.C. Hotel Draws Criticism, NPR September 28, 2017 and

Elizabeth Warren, The Supreme Court Has An Ethics Problem, Politico, November 1, 2017.

See e.g., Scalia-Cheney Trip Raises Eyebrows, Scalia Angrily Defends His Duck Hunt With Cheney.

Caplan, Does the Supreme Court Need a Code of Conduct?

Lubet and Diegl Stonewalling, Leaks, And Counter-Leaks: Scotus Ethics In The Wake Of Nfib V. Sebelius 47 Val. U. L. Rev. 883 (2013)

Laurel A. Rigertas, The Supreme Court And Recusals: A Response To Professor Lubet, 47 Val. U. L. Rev. 939 (2013)

Peter Geraghty Peter Geraghty is the director of ETHICSearch, the ABA ethics research service operated through the ABA Center for Professional Responsibility. In this capacity, he has responded to thousands of legal ethics inquiries from lawyers throughout the United States and has also written very widely on various legal ethics topics for various ABA publications. Prior to becoming a lawyer, he was a Peace Corps Volunteer in Togo, West Africa.