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11-02-23 Supreme Court Justices Ethics and Recusal Rules – Letter by US Law Professors

FEBRUARY 24, 2011

Law Profs Urge Ethics Rules for Supreme Court Justices

More than 100 law professors have signed on to a letterreleased today that proposes congressional hearings and
legislation aimed at fashioning "mandatory and enforceable" ethics rules for Supreme Court justices for the first
time. The effort, coordinated by the liberal Alliance for Justice, was triggered by "recent media reports," the
letter said, apparently referring to stories of meetings and other potential conflicts of interest involving
Justices Antonin Scalia and Clarence Thomas among others.
The professors note that the Court is not covered by the code of conduct that lower federal court judges are
required to follow. The Supreme Court has long said it looks to the code for "guidance" -- a concession which,
the signers agree, "has proved insufficient." The letter also points out disapprovingly that individual justices
alone decide whether they should or should not recuse in a given case, not subject to review by anyone else,
and with no requirement to explain their decisions. We delved into the recusal issue in a recent story in our
newsletterSupreme Court Insider (subscription required.)
"Adherence to mandatory ethical rules by justices, and requiring transparent, reviewable recusal decisions that
do not turn solely on the silent opinion of the challenged justice will reinforce the integrity and legitimacy of
the Supreme Court," the letter asserted.
The professors directed their letter to the leaders of the Senate and House Judiciary Committees, with an eye
toward hearings and legislation that would apply and enforce the code of conduct on Supreme Court justices,
and impose rules for transparency and review of justices' recusal decisions.
In making their case, the professors invoked the Court's own language from the 2009 decision in Caperton v.
A.T. Massey Coal Co., which disapproved of a state judge's refusal to step aside from a case that involved a
major campaign donor. "Judicial integrity is," the Court said, "a state interest of the highest order."
Alliance for Justice president Nan Aron said her group became involved with the letter-writing effort after
consulting with some legal ethics experts in the context of the growing controversy over meetings with
conservative groups by Thomas and Scalia, as well as lobbying activities by Thomas's wife Virginia. "They were
alarmed about what was happening," said Aron, so she agreed to "shepherd" the professors' letter through to
fruition. "The time is overdue," Aron said, for new ethics rules for the high court.
Among the signers are leading names and experts on legal and judicial ethics, including Stanford Law School's
Deborah Rhode, George Washington University Law School's Stephen Saltzburg and Alan Morrison, James Alfini
of South Texas College of Law, Yale Law School's Lawrence Fox, Amanda Frost and Herman Schwartz of
American University Washington College of Law, Northwestern University School of Law's Steven Lubet and
Ellen Yaroshefsky of Benjamin N. Cardozo School of Law.
Notably absent, however, was Stephen Gillers of New York University School of Law, perhaps the best known
legal ethics expert nationally. Asked about the letter today, Gillers said he agreed with most of it, but parted
ways with the group over the recusal issue. Requiring justices to submit their recusal decisions for review by
other justices, he said, could lead to "the appearance of opportunistic behavior" aimed at keeping a colleague
on or off the case, and could spoil the Court's collegiality. Citing the current "highly politicized" debate over
justices' ethics, Gillers also said he would rather that hearings and legislation take place "in a more neutral
time."
Posted by Tony Mauro on February 24, 2011 at 01:31 PM inPolitics and Government , Supreme Court | Permalink
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