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.
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.)
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.