Supreme Court Watch In year-end report, Chief Justice aims at recusal critics Controversy surrounds Thomas and Kagan's decisions to hear health care case

By Kimberly Atkins

The Daily Record Newswire

BOSTON -- Chief Justice John G. Roberts used his annual year-end report to rebuff assertions by critics that some justices of the U.S. Supreme Court have flouted their ethical obligations by deciding not to recuse themselves from certain cases.

"I have complete confidence in the capability of my colleagues to determine when recusal is warranted," Roberts wrote in his year-end report on the judiciary, released by the Court on Dec. 31. "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."

While Roberts declined to address concerns about specific matters pending before the Court, the report was released amid growing controversy over the decision by Justice Clarence Thomas and Elena Kagan to take part in hearing the challenge to the federal health care law.

"Some observers have suggested that, because the Judicial Conference's Code of Conduct applies only to the lower federal courts, the Supreme Court is exempt from the ethical principles that lower courts observe. That observation rests on misconceptions about both the Supreme Court and the Code," Roberts wrote.

Roberts noted that, in practice, the justices of the Court comply with the code, but they also seek out a host of other sources of guidance when deciding whether to sit in or out of a case.

"The justices, like other federal judges, may consult a wide variety of other authorities to resolve specific ethical issues," Roberts wrote. "They may turn to judicial opinions, treatises, scholarly articles, and disciplinary decisions. They may also seek advice from the Court's Legal Office, from the Judicial Conference's Committee on Codes of Conduct, and from their colleagues. For that reason, the Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance."

On the issue of recusals specifically, Roberts noted that Supreme Court 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."

Supreme Court justices, like other federal judges, decide for themselves whether to recuse themselves from a case. However, unlike other judges, the decision of the justices is not reviewable by a higher court.

The suggestion by some that recusal decisions be reviewable by the Court's other members would be unworkable, Roberts wrote, because "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."

Most importantly, Roberts noted, unlike lower court judges, who can choose not to participate in a case knowing they can be replaced by another judge, the justices of the Supreme Court have no substitutes.

"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," Roberts wrote. "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."

Published: Mon, Jan 9, 2012