Breaking and associated brands will be offline for scheduled maintenance Saturday May 8 3 AM US EST to 12 PM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The word “recuse” fills the wintry air of Washington D.C. these days, directed at Supreme Court justices with the same indignant tone as the similar-sounding Frenchism, “J’accuse!” Sen. Orrin Hatch, (R-Utah) wants Justice Elena Kagan to recuse in the challenge to health care reform making its way to the high court, because she was solicitor general when the law was passed. Judicial ethics expert Ronald Rotunda thinks Kagan should recuse for a different reason: During her confirmation hearing last year she opined, when asked, that Congress could pass a law requiring Americans to eat spinach, even if it was a “silly law.” That, says Rotunda, tips her hand on the health insurance individual mandate. Seventy-four House Democrats want Justice Clarence Thomas to recuse as well, because his wife Virginia, who last year was a Tea Party entrepreneur, is now a lobbyist offering her “experience and connections” to clients who might, say, want Obamacare overturned. And the usually less confrontational Common Cause has been hammering away at both Thomas and Justice Antonin Scalia for elusive encounters they may have had with the industrialist Koch brothers under the cover of west coast Federalist Society meetings. Common Cause thinks the justices should recuse retroactively in last year’s Citizens United decision because the Kochs and others stood to benefit from the decision’s loosening of campaign finance rules. The barrage has been so intense it has already produced a nostalgic backlash. In a Feb. 12 New York Times column, Harvard Law School professor Noah Feldman recalled the “pre-monastic” good old days – were they really that good? – when justices played poker with presidents and otherwise crossed the line into political involvement without recusing themselves, or being asked to. In the end, of course, the justices will decide whether or not to bow out. The decisions are individually made, with no requirement to explain, no resort to other justices or the full court, and no precedent to guide them. In fact, some justices have said the reason they don’t explain their recusals is precisely to avoid creating a public precedent that could compel – or embarrass – a colleague into recusing under similar circumstances. But the factors that go into justices’ thinking about recusal are known, and they cut both ways in the current debate. One factor that could sweep away all others is the so-called “duty to sit” – the notion that justices should not step aside for frivolous or weak reasons. That duty, justices have said, is especially strong at the Supreme Court where, unlike lower courts, recused justices cannot be replaced by anyone else. Losing one justice means an eight-member court which could easily split 4-4 and leave the lower court ruling standing – without giving the nation any guidance on what the Court really thinks about the health care law. In 2004, when Scalia was under fire for sitting in a case in which Vice President Dick Cheney, a duck-hunting partner, was a party, the duty to sit was the first argument he made in his unusual statement explaining why he would not bow out. Scalia quoted from an earlier 1993 statement made by seven justices with relatives who practice law – a lot of them do – that they would not recuse merely because a relative is a partner in a law firm involved in case. “Even one unnecessary recusal impairs the functioning of the Court,” the signing justices said then. But in the view of judicial ethics expert Jeffrey Stempel and others, the duty to sit is not a good reason to stay in a case when, for other reasons, recusal is required. A law professor at the University of Nevada Las Vegas, Stempel wrote a 100-page law review article arguing that the duty to sit died in 1974 when Congress passed the law governing the recusal of federal judges. “If it’s a close case, judges should recuse,” Stempel said in an interview. Rotunda, a professor at Chapman University School of Law, agrees. Regardless of the “duty to sit” doctrine, Rotunda says, “They shouldn’t sit when they shouldn’t sit.” Under the 1974 law, the need to recuse is clear in classic situations such as ownership of even a single share of stock in a company that is party to a case. Even that problem can be mitigated by what some judges, including Chief Justice John Roberts Jr., have done in recent years: sell the stock while the case is pending, so as to stay in the case. The law also requires judges who were previously government lawyers – like Kagan – to recuse if they were a counsel or adviser or “expressed an opinion concerning the merits” of the case now before them. In answers during her confirmation hearing, Kagan said she had never expressed an opinion about the challenge to the law that had been already filed, and said, “I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.” She also said she stopped going to regular department meetings when she learned she was under consideration for the high court. The close cases come when justices try to discern the meaning of other provisions of the law, such as the requirement to recuse in any proceeding in which a judge’s “impartiality might reasonably be questioned.” Berkeley, Calif. lawyer Richard Flamm, author of a text on judicial recusals, said the provision is so subjective as to be a “toothless statute” that gives judges complete discretion. “If the case for recusal couldn’t be made in Bush v. Gore or Citizens United, it’s not going to be made here,” said Flamm. But Stempel thinks an argument could be made – a difficult one, however – that some of the “hobnobbing” that Scalia and Thomas have done with organizations that are “in lockstep or are simpatico” with their own conservative views calls their impartiality into question. “You tend to get emotionally and intellectually invested” in points of view in such an environment, Stempel said. Another currently relevant provision is the one requiring recusal when a judge’s spouse is “known by the judge to have an interest that could be substantially affected” by the outcome of the case. Does Virginia Thomas’s new venture fit that bill, when her clientele and business are in flux and may not include any parties to the health care cases? Rotunda, for one, thinks it is a weak case, but acknowledges, “Justice Thomas is like a red flag to a bull. People are out to get him, and sometimes he helps them.” Rotunda cites Thomas’s failure to report his wife’s past income from the Heritage Foundation and other sources, which was also mentioned by the House Democrats as raising “great concern.” Thomas recently corrected his omissions with amended financial disclosure forms under a cover letter that said the information was “inadvertently omitted due to a misunderstanding of the filing instructions.” Common Cause argues that Virginia Thomas’s business, along with the Scalia and Thomas meetings with the Koch brothers, justify their after-the-fact recusal in Citizens United, which would trigger a rehearing. “We’re trying hard not to play fast and loose with the recusal law,” said Common Cause vice president Arn Pearson. “She created this employment for herself while the decision was being worked on.” If Virginia Thomas’s income raises a red flag, then is there something to be said about Joanna Breyer and Mary Kennedy? Justice Stephen Breyer annually reports spousal income from Dana-Farber Cancer Institute, where his wife works as a psychologist. And Justice Anthony Kennedy reports income from the California State Teachers Retirement System; his wife was a teacher in their California days. The fact that hospitals and public retirement plans could be affected by the fate of the health care law does not, however, compel recusal by Kennedy or Breyer, says Stempel. “It’s an indirect effect that is very attenuated,” he says. Still, recusals are hard to predict, and sometimes seem triggered by considerations that are surprising or at the edges of what the law requires. In 2003, Scalia recused in the denial of review in a case involving the Republic of Croatia — a move that was difficult to explain except for the fact that he had reported a 2002 trip to Zagreb whose expenses were reimbursed by Croatia. And for years after Thomas’s stormy 1991 confirmation hearings, he recused in cases brought by the late William Moffitt, who had testified against him on behalf of the National Association of Criminal Defense Lawyers. The justices’ intentions will only become clear when the Court starts acting on motions in the cases, the moment when recusals are usually first announced. In the meantime, by the Court’s own design, the suspense continues. Tony Mauro can be contacted at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.