Litigation

Law Profs Seek Supreme Ethics, Recusal Rules

By Peter Hardin

More than 100 law professors have signed a letter seeking action by Congress to establish “mandatory and enforceable” ethics rules for Supreme Court justices.

The letter also asks that Congress establish for the first time clear rules about the circumstances when an individual justice should recuse, or step aside from hearing a case, according to a Washington Post article. The letter states:

“Justices of the United States Supreme Court have not adopted and are not subject to a comprehensive code of judicial ethics.  Nor are denials of motions to recuse by individual justices required to be in writing or subject to review.  Recent media reports have focused public attention on this situation.  The purpose of this letter is to issue a nonpartisan call for the implementation of mandatory and enforceable rules to protect the integrity of the Supreme Court.”

The Alliance for Justice coordinated the letter, according a Blog of Legal Times article. The law professors’ letter cited the Supreme Court’s landmark Caperton v. Massey decision from 2009 in seeking recusal standards for the justices:

“Caperton illustrates the hazards of allowing self-judging on recusal questions….Unlike Caperton, where the Supreme Court reversed the self-judged view of a single state court judge, there is no review procedure for recusal decisions by Supreme Court justices.”

In  Caperton, the Supreme Court declared that campaign spending can damage a litigant?s right to a fair trial, and it required a West Virginia Supreme Court justice to disqualify himself from an appeal; the justice earlier had declined to step aside.

To learn more about Caperton, check out Gavel Grab. To read about some of the media reports mentioned in the letter, click here for other Gavel Grab posts; the disqualification issue at the high court was recently raised by Common Cause, an advocacy group. It questioned  whether Justices Antonin Scalia and Clarence Thomas should have stepped aside in voting on the Supreme Court?s landmark Citizens United case.

The BLT blog noted that not all law professors are in agreement, and that “perhaps the best known legal ethics expert nationally,” Stephen Gillers of New York University, did not sign the letter. Gillers didn’t agree about the recusal issue.

In another commentary, a National Journal column by Eliza Newlin Carney was entitled, “Injudicious Politics? Political advocacy by Justice Thomas’s wife raises questions about whether he should recuse himself in some cases.”

Full post as published by The Gavel on February 24, 2011 (boomark / email).