The Supreme Court’s new ethics code shows that the Court values its power more than its integrity. The justices don’t even hide it.
The ethics code appropriately calls for justices to recuse themselves from hearing a case “where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” But the code goes on to state that the “rule of necessity may override the rule of disqualification.”
This too may seem like an innocuous, even self-evident, principle. When there’s no viable alternative, we may have to tolerate a justice sitting with questionable impartiality.
The commentary to the new ethics code includes a case that is a good example of the “rule of necessity.” The issue in United States v. Will was how much federal judges should get paid. Obviously, a reasonable person could think that a judge who has a direct financial interest in the outcome of a case might have trouble being impartial. Because the case would affect the pay of all federal judges, no judge could be truly neutral. The conflict of interest could not have been more direct, but we needed some judge somewhere to decide the case. We don’t just close the courthouse door.
The new ethics code should have defined “necessity” to cover only unavoidable conflicts like the Will case. The justices did the opposite, broadening the scope of “necessity” beyond recognition. The commentary itself includes a troubling example: A justice need not recuse from a case in which their niece or nephew has a substantial financial interest. In such a case, an informed person might reasonably question a justice’s impartiality. Where then is the “necessity”?
The commentary waxes poetic about the importance of all nine justices hearing every case: “The Supreme Court consists of nine Members who sit together.” The commentary effectively throws open the door to a “necessity” argument in every case. If having a full bench is sometimes more important than having an unbiased bench, the “necessity” exception has swallowed the rule. This is not an accident.
In the commentary, the justices tell us what they are doing and why. The problem is that their reasons apply to nearly every case. One reason is so that the High Court can provide “a uniform national rule of decision on an important issue.” Later, the commentary adds as a justification the “broad scope” of cases before the Court. One might think the importance, broad scope and nationwide impact of Supreme Court cases would demand greater impartiality, not less.
There is another, unstated reason why the Court expands the definition of “necessity.” Absent a conflict that applies to all federal judges (as in the Will case), no justice is necessary to decide any case. The Constitution gives Congress the exclusive power to set up the judicial system. In exercising that authority, Congress has made clear that nine isn’t the magic number of justices for a decision. Indeed, in the very first section of the judicial code, Congress set the total number of justices at nine and set the quorum at six. Both the total size and the quorum requirement are up to Congress. The Court on its own cannot change either number.
Moreover, Congress is fully aware of the implications of recusal and knows how to handle them if it wants to. If too many justices recuse in certain direct appeals to the Supreme Court, Congress has, by statute, authorized a panel of lower court judges to step in and set nationwide precedent. For all other cases in which the Court does not have a quorum, Congress is content to let the lower court opinion stand.
In short, a Supreme Court justice is never a “necessity.” Congress, not the Court, sets the quorum requirement. The magic number of justices is six, not nine. And Congress knows perfectly well how to generate a nationwide precedent if fewer than six impartial justices are available.
Justices may believe they are irreplaceable, but respect for the Court will diminish even further if they allow their egos to override their commitment to impartiality.
Fredrick E. Vars is the Ira Drayton Pruitt, Sr. Professor of Law at the University of Alabama. He has written extensively about the Supreme Court and specialized in legal ethics during his six years in private practice.