Ethics rules generally prohibit a judge from deciding a case where the judge’s participation would create an “appearance of impropriety” in which the judge’s “impartiality might reasonably be questioned.” But in the U.S. Supreme Court, it is up to the justice, and the justice alone, to decide whether such an “appearance” might exist.
U. S. Supreme Court Justice Samuel Alito recently refused to recuse himself in January 6 insurrection cases even though both of his family’s houses had sported insurrectionist flags. One of them was an upside down American flag, something every conscientious Boy Scout would find offensive.
None of the reasons he gave justify his refusal.
To begin with, a justice’s oath requires him to “support and defend” the Constitution, not to turn it upside down.
And the connection of that gesture to the January 6th riot makes his conduct even worse. A pure heart is not good enough. The standard is “appearance.” If there were a lawsuit against Able whose sheep ate up Cain’s corn, would anyone believe it did not create an appearance of bias for a judge to drive around in a car with a “Love Sheep” bumper sticker?
Justice Alito argued that he was not responsible for how his wife exercised her free speech rights.
But the “appearance of impropriety” rule expressly applies to conduct by family members as well as judges. The rules for conflict of interest extend not only to the interest of the judge but also to the interests of the judge’s spouse or minor child residing in the justice’s household. While the “interest” that most commonly creates the conflict is financial, the rules also refer to “any other interest that could be affected substantially.”
The issue is not whether the spouse has a right to invest money, or have an opinion, but whether the justice has a right to vote on a case when that at investment or public stance makes it appear that the justice would not be neutral.
And Justice Alito’s reliance on the Court’s belief that the recusal standard for Supreme Court justices should be less demanding than those for other judges gets things backwards.
If a Supreme Court justice misbehaves, that invites every judge in the country to do the same irrespective of any nuances in the rules. For years, lawyers charged with contempt for criticism of judges sought to assert a “Scalia defense” that relied on scathing remarks the late Justice Antonin Scalia had directed toward fellow justices in his dissenting opinions.
Further, the appearance standard promotes respect for the court. The court needs more respect, not less, because, without respect, the court has no power. It cannot by itself enforce its opinions. When the Supreme Court issued an order recognizing Indian rights, President Andrew Jackson is said to have replied “Justice Marshall has made his opinion, now let him enforce it.” President Jackson then marched Indians in Georgia to reservations in Oklahoma and the court had no power to stop him.
In this regard, the court, whose duty is to “ensure domestic tranquility,” is like any peacemaker whose ability to make peace depends on party and public respect.
To gain and hold the respect of the parties and the public, the court relies on far more than the sheer reasoning power of its somewhat murky and ponderous opinions. Rather, it gains respect from both the manner in which the justices are chosen and also a number of traditions. It sits in a marble temple. Its justices wear black robes to signify neutrality. Deliberations are confidential. It begins its proceedings with the cry “God save the United States and this honorable court.” And ethical behavior by the justices is essential to ensure public confidence that the court is “honorable.”
But the current court is already on shaky ground when it comes to the manner in which its justices were selected. Five of its members were appointed by Presidents who, in at least one election, lost the popular vote. Four were confirmed by the votes of senators who, taken together, represented less than half of the population of the United States.
Finally, the court’s excuse for singling itself out for a less demanding ethical standard is perverse. Its excuse is that in other courts there is a way to substitute another judge when a judge decides not to participate in a case, but there is no way to replace a recused Supreme Court justice.
But consider what this means. The recusal of one of nine justices only matters when the court would be divided four-to-four. So the only situation in which recusal would matter is when conflicted justice would be the one who decides the case. But that is exactly the situation when recusal is needed the most.
The bottom line is that Justice Alito has it backwards. The recusal standards for Supreme Court justices should be more demanding than for other judges, not less. A start would be rules for spouses. The court has tried to make its standard less demanding by saying it is based on “all relevant circumstances.” But the public, whose respect is the object of the rules, can never know “all relevant circumstances” between husband and wife. In fact the law prohibits forced disclosure of spousal communications. For that reason, the rules should disqualify any justice whose spouse has undertaken any activity which might touch in any way on cases before the court, unless the rules would allow the justice to do the same thing.
Luther Munford is a Northsider who in 2010 chaired the Mississippi Supreme Court’s Committee on Rules of Judicial Conduct.
