Originally a comment by Pteryxx on Why Justice Scalia should recuse himself from abortion cases.
A spouse’s political views, even views they actively promote and work on, don’t rise to the level of conflict-of-interest that Supreme Court justices have traditionally employed in deciding on recusal.
That’s only because the Supreme Court, specifically, has given itself narrower standards for recusal than federal law applies. That’s all the more reason to challenge them to defend their decisions not to recuse themselves – and recusal motions do get filed.
This article quotes the text of 28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge (Link to code)
“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This includes when he “knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”
The statute goes on to define “financial interest” as “ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party.”
[…]Surprisingly, Supreme Court Justices are not bound by the ethical rules all other federal judges are. As a bipartisan group of law professors proposing new rules for Supreme Court recusals recently explained, “While all other federal judges are required to abide by the Code of Conduct, and are subject to investigation and sanctions for failure to do so, Supreme Court justices look to the Code for mere ‘guidance,’ and are not obligated to follow the Code’s rules.”
Further discussion: Health care case again raises recusal controversy
An existing federal statute applies to Supreme Court justices and appears to cover a wide range of conflicts, but the court historically has interpreted the statute tightly. The justices say it applies only in situations where lawyer-relatives have active cases before the court, or when justices stand to benefit financially. The current statute already expressly identifies justices and requires recusal from “any proceeding in which the judge’s impartiality might reasonably be questioned.”
The broad provision was supposed to make it easier for judges to withdraw rather than fall back on an overly restrictive duty to sit. Jurists typically have interpreted it as forcing them to continue on a case rather than succumb to compelling ethical conflicts that should disqualify them.
and Should Scalia step aside in gay marriage cases
But unlike all other federal judges, whose recusal decisions are subject to review, Supreme Court justices have the final word on their own recusal determinations. The court leaves it up to individual justices to decide whether to step down, and those decisions are not reviewed by the Supreme Court as a whole. Perhaps, as a result, it’s very rare for justices to recuse themselves simply because of the appearance of partiality. I can think of only one example in recent years: when Scalia stepped aside in the court’s consideration of the constitutionality of the Pledge of Allegiance’s phrase, “one nation, under God.” (As Linda Greenhouse explained in a New York Times piece, Scalia had made public remarks about the case before it reached the Supreme Court.)
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More specifically, Scalia has been making statements like “They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protesters?” and “This is not a protest case,” Justice Antonin Scalia said. “These people don’t want to protest abortion. They want to talk to the women who are about to get abortions and try to talk them out of it.” That tells me, and it should be obvious, that he has an unrealistic view of anti-abortion “counseling” that just happens to match how his spouse’s work is described. Even if her specific CPC, part of a supposedly apolitical organization where “saving” one woman and child takes 100 volunteers a year’s work, really lives up to its own promises and has never had its own volunteers go a few blocks down the road to “counsel” the clients of that Planned Parenthood clinic, I don’t think it coincidental that Scalia describes ALL clinic protesters as equivalents to his own family member. And the behavior of “sidewalk counselors” is absolutely key to the clinic buffer zone case under consideration.
So what’s the conflict? His spouse has an opinion on the subject?
No. She has much more than an opinion.
It’s in the post.
Oh lol – and here I thought me doing a few hours of research on the topic was *the end of* me getting involved in it.
No, I’m not a lawyer nor expert. I still think Scalia’s comments about
protesters“sidewalk counselors” are factually wrong in a way that aligns perfectly with his spouse’s CPC role. And as far as I can tell, that would be sufficient grounds for recusal for any federal judge *except* those on the Supreme Court.So he has a factual view that you think is wrong, that you speculate he got from his wife, and therefore…?
I read the post. I read the previous post. And I’m not seeing anything that resembles a coherent statement of when a justice should recuse that (1) applies to Scalia on this case and (2) wouldn’t apply to pretty much every justice on most cases.
There’s no allegation of a pecuniary interest. There’s nothing more than “I hate Scalia, so I’m going to use his wife’s advocacy on an issue to insinuate that he’s being unethical.”
Ruth Bader Ginsburg was married to one of the most prominent tax lawyers in the U.S. She did not recuse herself on issues of tax law. Here’s what Justice Breyer had to say when asked whether Justice Thomas was obligated to recuse himself because of Ginni Thomas’s advocacy on Obamacare:
But sure, take Pteryxx’s Google University law degree over what two justices not at all sympathetic to Scalia’s ideological views say.
Really?
Yes, really.
You keep giving these one-word or one-phrase replies as if I’ve overlooked some argument that is laid out in the posts. There isn’t one. It’s just a bunch of “Scalia has views I don’t like; so does his wife. Therefore, obviously his wife is influencing him on this issue, and I don’t like it, and therefore he should only get to decide cases on which his wife has no opinion.”
Indulge me: break it down into a syllogism for poor, reading-comprehension-impaired me.
1. A Supreme Court Justice should recuse him or herself if condition X exists.
2. Mrs. Scalia’s work as a crisis pregnancy counselor means that X exists for Justice Scalia on (all cases involving abortion, or some other subset), because ______.
3. Therefore, Scalia should recuse himself.
For bonus points, please explain how this standard wouldn’t wreak total havoc on the Court and lead to constant probing of the justices’ families and their views and activities. Super extra bonus points for considering the feminist implications of a rule that says that having a spouse who’s politically active disqualifies you from the Court. But I’ll settle for the basic argument to start with.
Mrs Scalia’s work is more like that of the woman in the case before the court. A serial pest who preys on women whom she considers to be vulnerable to her nagging and guilting.
@6 screechymonkey
The conflict seems to be that Scalia’s wife herself participates in the activity that’s being decided over. Especially since he himself made that comparison. So he’s admitted he would basically be deciding whether or not his wife can do what she does or be limited in what she does.
Anyhoot the OP presents a *should* case, not a *is obliged to by law* case, it’s explained pretty well so I’m not exactly sure what your problem is. Of course if Scalia’s framing is wrong then that’s more important, but it looks as if Scalia himself is the one creating a conflict-of-interest framework – similarly to his previous recusal. But then he’ll be deciding whether or not to recuse anyway.
I don’t buy the recusal argument.
The justices are a diverse lot, encompassing several religions, ethnicities, backgrounds, and social and political views. It’s well-nigh unavoidable that some of them will have personal viewpoints and potential conflicts of interest related to any given case. Were they members of a lower court, this would not be an issue; they could avoid any possible appearance of impropriety by recusing themselves and letting another judge take their place.
Supreme Court justices don’t have that option. No one can take their place; recusal means leaving the decision up to the remaining justices. Now consider this scenario: two justices have opposing views that might compromise their impartiality on a given case. One does the “right thing” and recuses herself. The other does not. The outcome will now lean toward the viewpoint of the justice who did not recuse himself. Is it likely that justice will be served in this case?
It has been clear for many decades that for better or for worse, the Supreme Court is not a dispassionate, impartial body of judges. It is more like another house of Congress with nine unelected members who have to come up with reasonable legal justifications for their votes. We have all seen how skillfully Justice Scalia manages to justify his homophobic decisions and dissenting opinions. We have also seen how capably his more liberal colleagues can justify their recognition of rights they claim to be implicit in the constitution. Ultimately, it all comes down to opinions, in both the legal and vernacular senses of the word. Some citizens want more Earl Warrens on the court; others want more Antonin Scalias. We might all want more perfectly impartial justices; but we will never get them, for they don’t exist.
For better or for worse, the justices are our advocates in the legal arena. To recuse themselves is to abdicate their responsibility to their constituency. Except in those cases where the conflict of interest is crystal clear, they will not recuse themselves, and they should not.
Well, if by “several” you mean “two”. And if by “diverse backgrounds” you mean it in the sense that they’re largely white males with upper-middle class childhoods.
I don’t think we necessarily want more perfectly impartial justices, but more actually representative justices. Sure, white males can (and some do) understand the impacts of gender, race, and socioeconomic status on life in this country, but they are less likely to understand, overall. So a court makeup that is more like the country’s makeup might actually serve justice better than what we currently have.
As far as one justice doing the “right” thing and recusing and the opposing one not, well, that’s a strawman. It’s not about their opinions compromising their impartiality, but their material interests compromising their impartiality. In this case, it’s not Scalia’s personal opposition to abortion that is the issue, it’s that the activities his wife participates in are what the case is about.
The rebuke regarding the justices’ religions is accepted. I assumed without checking. Thank you for the lesson.
It seems curious that the most common religious group in the nation is completely unrepresented on the current court. However, Roman Catholics do have a strong tradition of rigorous education (as long as dogma isn’t challenged), as do Jews, while American Protestants seem less intellectual on average. Perhaps intellectual Protestants are more likely to more toward atheism, thus usually rendering themselves de facto ineligible for high office.
I don’t really see Scalia having a material interest in his wife’s work that goes beyond his personal opinions. The Nurturing Network would continue to advocate their views and she would continue to be paid for serving on their board regardless of any decision coming from the Court.
@8:
First of all, I don’t see how that’s the case. Sitting on the board of a CPC organization isn’t the equivalent of hanging around outside abortion clinics haranguing patients.
But second, so what? Justices decide cases all the time that affect the rights of all Americans, including themselves and their spouses.
If a justice or his spouse likes to make campaign contributions, must they recuse from all campaign finance decisions?
If a justice or his spouse owns guns, must they recuse from all 2nd Amendment cases?
Must a justice who is, or is married to someone, who might conceivably seek an abortion in the future, recuse from all abortion cases?
Should Justice Ginsburg have recused herself from all tax cases prior to her tax attorney husband’s death?
Must a gay justice recuse from any gay marriage cases?
As to that last one, recall that the anti-gay marriage side tried to have the district court judge disqualified from the Prop 8 case on the grounds that, as a gay man, he couldn’t be impartial. Pretty much everyone else thought that was a disgusting argument. But I can’t see how that that judge hearing the case didn’t fall afoul of your standard of “deciding whether or not [he] can do what []he does or be limited in what []he does.”
Because the point in question would be about what he, himself could do for himself and not to other people? And pretty much the sole purpose of CPCs is, in fact, “hanging around outside abortion clinics haranguing patients”, which is doing something to/at other people, not yourself?
I’m not even saying Scalia should recuse himself — I’m undecided on that, although I personally wish he would recuse himself from the court permanently. I’m just saying don’t use false equivalences to make your argument.
By that standard, Scalia should just resign his position. He’s demonstrated that he can’t ever be impartial and unprejudiced.
MyaR@13:
Well, it’s only a false equivalency because you believe — as I do — that there’s a right to gay marriage and not a right to harass people outside abortion clinics. But since those are the very issues to be determined in the case, you can’t assume the conclusions and then use them to answer the recusal question. Remember, the Prop 8 defenders argued among other things that gay marriage does cause harm to other people — “children” or some vague “societal interest” — and while ultimately the judge (correctly, in your view and mine) found that this was unsupported, he had to preside over a trial first at which that evidence was presented, before he could make that determination.
You have to answer the recusal question first and treat the ultimate issue as undetermined for now.
Basically, if the question to be decided by the court is “is there a right to do X,” then my position is that you can’t require recusal of any judge who would like to do X (or whose spouse would). It’s an unworkable standard.
I now have to recuse myself from any dispute regarding the overuse of italics.
John Horstman @14:
What does it mean to be “impartial and unprejudiced” on the kinds of broad questions the Supreme Court often tackles?
I mean, for a trial-level judge, it’s relatively simple, because they’re mostly engaged in fact-finding and in applying well-established legal rules to the situation at hand. “I have no idea whether John Smith the defendant is guilty of the crimes with which he’s been charged” Ok, you seem to be impartial. “I have no idea if the XYZ Corporation negligently caused injury to the plaintiff.” Ok, you seem to be impartial.
But the Supreme Court tends to handle more abstract, general, legal issues, the kinds of things they’ve likely thought about before.* I mean, did anybody really believe whichever justice (I think it was Souter?) who claimed in his confirmation hearings that he’d never thought about Roe v. Wade?
Right now, everyone just assumes that we know how at least eight of the nine justices are going to vote in the Hobby Lobby case, for instance, and they’re the same assumptions that were made before oral argument took place. Does that mean that everybody except Justice Kennedy is biased and prejudiced on the matter?
But Scalia does have a habit of shooting his mouth off a little more than he should. He did end up recusing himself in one case based on some public comments he made.
*Actually, that’s probably a bit of an exaggeration. I’m sure a lot of the justices have given absolutely no prior consideration to some obscure point of ERISA law or admiralty jurisdiction. But it’s true for the subset of cases that get the most attention.