Ethics

As we know, the Code of Conduct for U.S. Judges does not apply to the Justices. They are the only judges in the nation not governed by ethical rules.

The disqualification statute does apply. But a motion to disqualify is made by the Justice whose disqualification is sought and will not be reviewed by other Justices (although it could be, nothing stops them except perhaps their preference not to have their own decisions reviewed). 

Recusal motions at the Supreme Court are rare. When they are made, they will often lack merit on their face. But sometimes not. Justice Scalia's opinion rejecting the motion to recuse himself in what has come to be known as the Cheney Duck Hunting Case is an example of a strong motion. Scalia's opinion rejecting it is weak (and in my view quite wrong), but there was no one there to say why or point out the gaps in his reasoning.

Requiring recusal motions to be decided by another Justice may be a solution, though perhaps at the expense of collegiality on occasion. And wouldn't the other Justice have an interest in the question, too, because how it's decided could determine the outcome of the appeal. 

Imposing the Code of Conduct on the Supreme Court is a further solution. Maybe Congress could do that, unless it would violate separation of powers, but why would it? The recusal statute does not. Allowing retired Justices to fill a vacancy occasioned by recusal avoids the risk of a 4-4 split.

What else can we do? Or should we do nothing? Sometimes nothing is the best of a set of imperfect solutions.