January 3 2012

Chief Justice Defends Recusal Process in Year-End Report

Hadley Heath

Cross-posted from HealthCareLawsuits.org.

 
In his 2011 End-of-Year Report, Chief Justice John Roberts focuses on the ethical standards of the Supreme Court.  One section of the report is devoted entirely to "Recusal" and the expectations for justices to dismiss themselves from cases where they might be biased.  The section concludes:
 
I have complete confidence in the capability of my colleagues to determine when recusal is warranted.  They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.  I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties.  We are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law.   
 
Roberts noted the different circumstances faced by Justices and lower court judges. In lower courts, when a judge recuses, another judge can replace him or her.  Or, if the decision of a judge to recuse is questioned, a higher court can examine the judge's possible partiality.  But in the Supreme Court, of course, it is left entirely up to the Justice, since there are no replacement Justices, there is no higher court, Justices cannot force each other to recuse, and the power of Congress to force recusal "has not been tested."  Roberts writes about the consequences of a recusal:
 
But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership.  A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.  Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.
 
Indeed, recusal is a serious matter.  And after reading these lines from Roberts, you might think it is something awful and rare.  But it's really not rare, especially in cases where a former government lawyer - like, for example a former Solicitor General - will recuse from a large portion of the cases in her first few terms precisely because of her involvement in crafting the laws in question. (Elena Kagan recused herself from 29 of the 82 cases the Court heard in her first term!)  
 
But overall, this year-end report sounds like a reassurance and an encouragement to have faith in our Supreme Court Justices.  
 
Oddly enough though, it reminds me of a scene from a popular Christmas movie that you and I probably both watched over the holidays.  "A Christmas Story" is the story of Ralphie, a boy who wants a Red Rider BB gun from Santa.  One day Ralphie's friends get one of them into a sticky situation when he tests whether his tongue will stick to a freezing cold flag pole.  The boy, whose tongue gets cut in the process, refuses to call out his friends who put him up to it.  This leads to a lecture from the teacher, who goes on and on about how awful the friends must feel, and how this ethical dilemma and resulting guilt must be worse than any punishment they might receive.     
 
Ralphie's thoughts on the matter? "Adults loved to say things like that but kids knew better. We knew darn well it was always better not to get caught."  
 
For Elena Kagan, it's always better for Roberts to lecture about his faith in her impartiality than for her to actually face up to it by doing the right thing and recusing herself.  She knows darn well it's better not to get caught.
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