Many people have gloomily accepted the conventional wisdom that because there is no binding Supreme Court ethics code, there is no way to force Associate Justices Samuel Alito and Clarence Thomas to recuse themselves from the Jan. 6 cases that are before the court.
Justices Alito and Thomas are probably making the same assumption.
But all of them are wrong.
It seems unfathomable that the two justices could get away with deciding for themselves whether they can be impartial in ruling on cases affecting Donald Trump’s liability for crimes he is accused of committing on Jan. 6. Justice Thomas’s wife, Ginni Thomas, was deeply involved in the Jan. 6 “stop the steal” movement. Above the Virginia home of Justice Alito and his wife, Martha-Ann Alito, flew an upside-down American flag — a strong political statement among the people who stormed the Capitol. Above the Alitos’ beach home in New Jersey flew another flag that has been adopted by groups opposed to President Biden.
Justices Alito and Thomas face a groundswell of appeals beseeching them not to participate in Trump v. United States, the case that will decide whether Mr. Trump enjoys absolute immunity from criminal prosecution, and Fischer v. United States, which will decide whether Jan. 6 insurrectionists — and Mr. Trump — can be charged under a statute that criminalizes “corruptly” obstructing an official proceeding. (Justice Alito said on Wednesday that he would not recuse himself from Jan. 6-related cases.)
Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection. Each justice decides for him- or herself whether he or she can be impartial.
Of course, Justices Alito and Thomas could choose to recuse themselves — wouldn’t that be nice? But begging them to do the right thing misses a far more effective course of action.
The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.
The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455. The Constitution has come into play in several recent Supreme Court decisions striking down rulings by stubborn judges in lower courts whose political impartiality has been reasonably questioned but who threw caution to the wind to hear a case anyway. This statute requires potentially biased judges throughout the federal system to recuse themselves at the start of the process to avoid judicial unfairness and embarrassing controversies and reversals.
The constitutional and statutory standards apply to Supreme Court justices. The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges: “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The only justices in the federal judiciary are the ones on the Supreme Court.
This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.
When the arguments are properly before the court, Chief Justice John Roberts and Associate Justices Amy Coney Barrett, Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan, Brett Kavanaugh and Sonia Sotomayor will have both a constitutional obligation and a statutory obligation to enforce recusal standards.
Indeed, there is even a compelling argument based on case law that Chief Justice Roberts and the other, unaffected justices should raise the matter of recusal on their own (or sua sponte). Numerous circuit courts have agreed with the Eighth Circuit that this is the right course of action when members of an appellate court are aware of “overt acts” of a judge reflecting personal bias. Cases like this stand for the idea that appellate jurists who see something should say something instead of placing all the burden on parties in a case who would have to risk angering a judge by bringing up the awkward matter of potential bias and favoritism on the bench.
But even if no member of the court raises the issue of recusal, the urgent need to deal with it persists. Once it is raised, the court would almost surely have to find that the due process clause and Section 455 compel Justices Alito and Thomas to recuse themselves. To arrive at that substantive conclusion, the justices need only read their court’s own recusal decisions.
In one key 5-to-3 Supreme Court case from 2016, Williams v. Pennsylvania, Justice Anthony Kennedy explained why judicial bias is a defect of constitutional magnitude and offered specific objective standards for identifying it. Significantly, Justices Alito and Thomas dissented from the majority’s ruling.
The case concerned the bias of the chief justice of Pennsylvania, who had been involved as a prosecutor on the state’s side in an appellate death penalty case that was before him. Justice Kennedy found that the judge’s refusal to recuse himself when asked to do so violated due process. Justice Kennedy’s authoritative opinion on recusal illuminates three critical aspects of the current controversy.
First, Justice Kennedy found that the standard for recusal must be objective because it is impossible to rely on the affected judge’s introspection and subjective interpretations. The court’s objective standard requires recusal when the likelihood of bias on the part of the judge “is too high to be constitutionally tolerable,” citing an earlier case. “This objective risk of bias,” according to Justice Kennedy, “is reflected in the due process maxim that ‘no man can be a judge in his own case.’” A judge or justice can be convinced of his or her own impartiality but also completely missing what other people are seeing.
Second, the Williams majority endorsed the American Bar Association’s Model Code of Judicial Conduct as an appropriate articulation of the Madisonian standard that “no man can be a judge in his own cause.” Model Code Rule 2.11 on judicial disqualification says that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” This includes, illustratively, cases in which the judge “has a personal bias or prejudice concerning a party,” a married judge knows that “the judge’s spouse” is “a person who has more than a de minimis interest that could be substantially affected by the proceeding” or the judge “has made a public statement, other than in a court proceeding, judicial decision or opinion, that commits or appears to commit the judge to reach a particular result.” These model code illustrations ring a lot of bells at this moment.
Third and most important, Justice Kennedy found for the court that the failure of an objectively biased judge to recuse him- or herself is not “harmless error” just because the biased judge’s vote is not apparently determinative in the vote of a panel of judges. A biased judge contaminates the proceeding not just by the casting and tabulation of his or her own vote but by participating in the body’s collective deliberations and affecting, even subtly, other judges’ perceptions of the case.
Justice Kennedy was emphatic on this point: “It does not matter whether the disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position — an outcome that does not lessen the unfairness to the affected party.”
Courts generally have found that any reasonable doubts about a judge’s partiality must be resolved in favor of recusal. A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” While recognizing that the “challenged judge enjoys a margin of discretion,” the courts have repeatedly held that “doubts ordinarily ought to be resolved in favor of recusal.” After all, the reputation of the whole tribunal and public confidence in the judiciary are both on the line.
Judge David Tatel of the D.C. Circuit emphasized this fundamental principle in 2019 when his court issued a writ of mandamus to force recusal of a military judge who blithely ignored at least the appearance of a glaring conflict of interest. He stated: “Impartial adjudicators are the cornerstone of any system of justice worthy of the label. And because ‘deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges,’ jurists must avoid even the appearance of partiality.” He reminded us that to perform its high function in the best way, as Justice Felix Frankfurter stated, “justice must satisfy the appearance of justice.”
The Supreme Court has been especially disposed to favor recusal when partisan politics appear to be a prejudicial factor even when the judge’s impartiality has not been questioned. In Caperton v. A.T. Massey Coal Co., from 2009, the court held that a state supreme court justice was constitutionally disqualified from a case in which the president of a corporation appearing before him had helped to get him elected by spending $3 million promoting his campaign. The court, through Justice Kennedy, asked whether, quoting a 1975 decision, “under a realistic appraisal of psychological tendencies and human weakness,” the judge’s obvious political alignment with a party in a case “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”
The federal statute on disqualification, Section 455(b), also makes recusal analysis directly applicable to bias imputed to a spouse’s interest in the case. Ms. Thomas and Mrs. Alito (who, according to Justice Alito, is the one who put up the inverted flag outside their home) meet this standard. A judge must recuse him- or herself when a spouse “is known by the judge to have an interest in a case that could be substantially affected by the outcome of the proceeding.”
At his Senate confirmation hearing, Chief Justice Roberts assured America that “Judges are like umpires.”
But professional baseball would never allow an umpire to continue to officiate the World Series after learning that the pennant of one of the two teams competing was flying in the front yard of the umpire’s home. Nor would an umpire be allowed to call balls and strikes in a World Series game after the umpire’s wife tried to get the official score of a prior game in the series overthrown and canceled out to benefit the losing team. If judges are like umpires, then they should be treated like umpires, not team owners, team fans or players.
Justice Barrett has said she wants to convince people “that this court is not comprised of a bunch of partisan hacks.” Justice Alito himself declared the importance of judicial objectivity in his opinion for the majority in the Dobbs v. Jackson Women’s Health Organization decision overruling Roe v. Wade — a bit of self-praise that now rings especially hollow.
But the Constitution and Congress’s recusal statute provide the objective framework of analysis and remedy for cases of judicial bias that are apparent to the world, even if they may be invisible to the judges involved. This is not really optional for the justices.
I look forward to seeing seven members of the court act to defend the reputation and integrity of the institution.
Jamie Raskin, a Democrat, represents Maryland’s Eighth Congressional District in the House of Representatives. He taught constitutional law for more than 25 years and was the lead prosecutor in the second impeachment trial of Donald Trump.
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