In the modern era, U.S. Supreme Court justices have been cited for what some critics characterize as “controversial” statements, sometimes relating to actual or potential matters before the Court. In some instances, these critiques have been accompanied by calls for recusal in specific cases. More recently, critics have turned to the statements not only of the justices themselves, but of the spouse of one particular justice. In light of these recent developments, what are the free speech considerations for justices and their family members? Although there is no formal code of judicial conduct applicable to spouses or even the justices of the Supreme Court, what are the ethical considerations of these actions? Does Congress have authority to impose an ethical code on this co-equal branch of government, particularly at the level of the Supreme Court?
- Prof. Rebecca Roiphe, Trustee Professor of Law and Co-Dean for Faculty Scholarship, New York Law School
- Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law, George Washington University Law School
- Prof. Michael I. Krauss, Professor Emeritus of Law, Antonin Scalia Law School, George Mason University
- Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Dean Reuter: Welcome to The Federalist Society’s Teleforum webinar call, as today, April 19, 2022, we discuss Judicial Ethics in the Modern Era. I’m Dean Reuter, Senior Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call. Also, of course, this call’s being recorded, will be used as a podcast, and we likely be transcribed and put on The Federalist Society’s website.
We’re very pleased to welcome three experts to our call today. We’re going to hear opening remarks from each of them. I might have a question or two. But as always, we’ll be looking to the audience for questions. So throughout the program if you have a question, please use the Q&A function at the bottom middle of your screen to ask your question, and we’ll try and get to as many of those questions as possible. We’re going to hear first today from Professor Thomas D. Morgan. He’s the Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law at the George Washington University Law School. He’ll be followed by Professor Michael Krauss, Professor Emeritus of Law at the Antonin Scalia Law School at the George Mason University. And then finally in opening remarks, we’ll hear from Professor Rebecca Roiphe. She’s the Trustee Professor of Law and Co-Dean for Faculty Scholarship at the New York Law School.
Welcome one and all. I think everybody’s seen the description for this event. We are talking, I think, trying to have a discussion about judicial ethics in light of some of the recent events—I wouldn’t quite call it breaking news—but events that everybody’s hearing about. Criticism of one or more justices, the roles of spouses, what does this all mean in terms of judicial ethics? There’s a particular decision that I think has been raised as a point of discussion by many and that’s the 8-1 decision that concerned events on January 6. That’s all I’m going to say in terms of setting the table. I think we’re going to have a lively discussion here today with some room for disagreement.
But to get us started, Professor Tom Morgan, I know you’re going to talk about a number of things in your opening remarks, maybe five or ten minutes. Hopefully, you’ll talk about the standards that are in place as well. What should those standards be? What are they? With that, Professor Morgan, please go right ahead.
Prof. Thomas D. Morgan: Thanks, Dean. This is an important topic. It’s one that we all care about and one that has a way of moving from the status of a particular justice or decisions of a justice to the Court as an institution. So that it’s important that we think clearly about the topic. It isn’t a modern topic or a topic that has a partisan cast to it. As long ago as 1966, we had a justice with a controversial wife, and that justice helped established the Court’s attitude toward the ethical status of justices that has pretty much carried the day ever since. The Justice William O. Douglas was 67 years old when he married Cathy Heffernan who was 24 and who had strong political convictions consistent with those of the justice. Many Republicans were apoplectic, and they had been apoplectic about Justice Douglas before that, but it was reinforced by this. Justice Douglas said it is nobody’s business what a justice of the Court or the justice’s spouse or family do in their personal feelings and their personal conduct.
My point is not to deal with Justice Douglas’s case or to say that the ethical issues are identical. It’s simply to say that the problem of clear understanding and fair treatment of the conduct of Supreme Court justices, and judges generally, is a critical issue. Like Justice Douglas earlier, the Supreme Court as an institution has taken the position that separation of powers requires that its members not be subject to binding ethical standards. In my view, that position is wrong. First, justices now adhere—one can ask whether they could say they don’t have to adhere, but they do adhere—to financial reporting standards that apply to all federal employees, including judges, and they concede their subject to Section 28 USC Section 455 requiring recusal in a number of settings. The general proposition is that they are required by Section 455 to recuse themselves in any proceeding in which the justices’—judges’—impartiality might reasonably be questioned. And the question then becomes what that means and how it applies in this situation.
I would suggest, not that Congress should take action to impose standards on the Court, but that the Court declare that its justices will follow the Code of Conduct for United States Judges, a document adopted by the judicial conference of the United States applicable to all other federal judges, and that bears -- that I think virtually everybody agrees is a reasonable set of rules. The question of when a judge’s impartiality might reasonably be questioned is of course where most of this discussion is going to center. And I think the key distinction to keep in mind here is the distinction between whether the justice has a personal interest in or obligation to one or more of the parties versus whether or not the justice has views about significant social and policy issues.
All justices have strong views about various public issues. But the requirement of disqualification, as indicated by the whole context of Section 455, is whether or not they have an interest in the result in the case. It’s why in her recent confirmation hearings, now about to be Justice Jackson accepted that she should not participate in the decision involving Harvard where she is on the board of overseers, but she was not asked to recuse herself in cases involving affirmative action, where presumably has at least equally strong views. The point is there is a body of law here—and the rest of the panel, I’m sure, will develop it—that is useful, available to the Court. And in my view, the Court would do a great service to itself to voluntarily accept the responsibility that all other federal judges face.
Dean Reuter: Professor Krauss, your opening thoughts.
Prof. Michael I. Krauss: Thanks. I’m going to take issue a little bit with something that Tom said. Let me introduce this in a possibly strange way to analogize it to public international law. Public international doesn’t exist. There are cynics who say, “No, it doesn’t exist because there’s no enforcement mechanism. There’s no binding rule. There’s no sanction that will be applied legally and certainly to violators.” I don’t think that’s true. I think public international law does exist. It’s a subject I used to teach. It exists and it has moral suasion. It exists because people feel bound by it even if there is no sanction mechanism applicable to the deviant states.
Similarly, it would be silly to say that the Supreme Court justices are boundless. I understand that Justice -- that this was said in the 1960s, but it was said by a justice who had the habit of saying perhaps slightly outrageous things occasionally. Even though there’s no way to sanction a judge who commits a violation apart, of course, from impeachment, which is virtually impossible in this case—it was tried once with Justice Chase I believe and didn’t succeed—but really very difficult to conceive of -- there’s no legal sanction, but there is sufficient moral sanction to impress itself on justices. That being said, let me state that it’s not at all clear to me even that Section 455 is legally binding on the Supreme Court, legally binding in the -- first of all, of course, it doesn’t mention a sanction or a lawsuit or a liability or even discipline. It’s not clear that -- however, it’s reasonable. It is very reasonable, and the Supreme Court has chosen quite wisely to abide by it, especially since as Tom pointed out, some of the verbiage is sufficiently vague to allow a play, really as a large amount of play.
So for example, to harken way back past the current 8-1 decision that Dean alluded to, I recall United States v. Virginia, the case where the Virginia Military Institute’s all-male status was successfully challenged in a divided Supreme Court decision. Justice Thomas recused himself from that case, if memory serves, because his son was a student there at the time. Now, it wasn’t clear that what his son’s views were on sexual segregation at the school, but whatever they were—I don’t know what they were; I don’t know what they are—but Justice Thomas recused himself. Justice Ginsburg, who wrote the opinion for the Court, did not recuse herself despite her membership and prominent activity in a nonprofit organization that was one of the prime movers in the challenge to the MI’s sexual exclusivity or segregation.
So we’ve had these kinds of debates for a while. Much of it depends on what, as Tom pointed out—let me sort of hone in on this as I close my opening remarks—on what we mean by an interest. What is an interest? It can’t merely mean an intellectual interest. Otherwise, the only justices that would ever decide cases would be justices that had never thought about the case ever before and that had no interest in the outcome. So it clearly does mean a financial interest. Can it mean more than a financial interest? I think it can. And I’ll just close with one little example.
Let’s imagine that instead of inviting Ms. Thomas to appear before the Congressional Committee, the Congressional Committee had issued a subpoena to Ms. Thomas. And then somehow before the Supreme Court came the issue of whether congressional contempt of court was constitutional, whether Congress had the right to hold people in contempt for refusing to comply with a subpoena, and a subpoena had been issued to Mrs. Thomas. That would be a sufficient interest, in my opinion, on the part of Mrs. Thomas to require Justice Thomas to recuse. But none of that happened in this 8-1 case. And my only wish is that Justice Thomas had spent two or three sentences at the beginning of his dissent to explain why he was not obliged to recuse, much as Justice Scalia did back in the day when he was accused of not recusing himself in a case against Vice President Cheney.
Dean Reuter: Professor Roiphe, I’d love to hear your opening thoughts.
Prof. Rebecca Roiphe: So I want to start with a question of what the standards are and what they should be. So Section 455 has both a general proposition and then more specific ones. And the general proposition says essentially you ought to recuse yourself when you’re impartiality can reasonably be questioned. And then there are list that’s not inclusive -- sorry, not exclusive, a list of specific times in which that exists. So both Tom and Michael brought up some of those, when you have a personal interest in the outcome of a case, when you are related to a party in the case, when you have a financial interest in the case. So I think the standards that ought to apply and I think the standards that the justices generally do apply in the cases is that when one of those more specific provisions apply, they recuse themselves.
However, this more general notion about when your impartiality can reasonably be questioned is somewhat problematic in the cases of all judges but particularly in the case of the Supreme Court. And that’s because on lower courts, you can always find somebody to sit in your place. But on the Supreme Court, you are always balancing the operational need for the Court to proceed, and that operational need is particularly weighty. Because if one justice recuses himself, then you might have a 4-4 tie because there will be an even number of justices remaining. For that reason and also for the ultimate reason of judicial integrity, which I’ll get to in a minute, I think that this more general sense of just generally when your impartiality can be questioned is not really an appropriate standard for the Supreme Court.
So then I want to talk for a second about Justice Thomas himself. So applying what I think ought to be the standard, I think he ought to have recused himself in the case in which the tranche of emails was at issue. Because if he knew—and again, this is an if—but if he knew that his wife’s emails were at issue in that case and that they were going to become public or they were going to become an issue if the court case came out in a particular way, that seems like a concrete interest, as Michael was suggesting, that might lead a justice to think that is problematic, because I have some kind of reputational interest in what’s going on in this case and in the outcome of this case.
But on the other side, her passionate interest and belief in certain of the underlying ideological issues ought not to be a reason for Justice Thomas to recuse himself for two reasons. One, I don’t think we in the modern day should think of husbands and wives as one unit. I certainly don’t agree with my husband on many issues—I’ll say that now in case anybody’s listening—and he doesn’t agree with me. I think that’s problematic, and it also is in some ways chilling of a spouse of somebody in a public position like Justice Thomas’s and that is problematic. But also, even if these strong beliefs were held by Justice Thomas, which they may well be, I think we have faith in our judiciary. We have to have faith in our judiciary. And the public understands that judges are required to look at the facts on law and to the best of their ability put their ideological concerns to the side, their personal interests and beliefs to the side, and decide the cases in the way that the law dictates.
And so, I think that in the general sense that he ought to recuse himself in all January 6 related cases is just wrong. And I’ve heard a lot of legal ethics put forward the other position, and I just don’t agree with it. And I think it’s, in fact, dangerous in part because, which is my next point which comes to the integrity of the judiciary, that the integrity of the judiciary suffers, not only when there’s this kind of public remark, but I think possibly even more so when there are public calls usually from the opposite side of the aisle for the justice to recuse. I mean, Tom brought up examples. Michael brought up examples. It’s always the ideological opposition that says this justice now needs to recuse. That, I think, casts doubt on the legitimacy of the institution.
Okay. So finally, I just want to talk about the congressional proposals. And there actually are a wide range of congressional proposals to deal with this problem, and many of them are very aware of the separation of powers concerns. But I want to say that I’m very concerned about the separation of powers concerns. I think that the judiciary has because of a sense of comedy not questioned many of the things that Congress has -- many of the impositions that Congress has put on, financial disclosure, Rule 455. But I think if pushed, there might be a very good argument that the real way to check the judiciary is through salary increases and impeachment. And those are the two mechanisms in the Constitution that Congress has to govern the judiciary. And I don’t really think that it’s appropriate for a co-equal branch to order the judiciary to adopt a code of ethics.
So then that leads to Tom’s point, well, maybe they should just voluntarily adopt a set of norms. I’m in favor of that. I think that leads to a question of, well, how best is a small group of people create norms within the institution. I don't know that rules are really the best way to do that. I do think informal norms often work better in that context. And I would definitely leave it up to the chief justice to make that call and not feel entirely comfortable even as an outside commentator saying you have to do this for the sake of the integrity of the judiciary because I think his familiarity with the institution puts him in a better position to determine how best to promote that interest.
Dean Reuter: Very good. I want to go back to Professor Morgan and Krauss, see if they have anything they want to say in response or to augment their opening remarks. As you do that, let’s be clear whether we’re talking about judges or justices. Are those two different things under the Constitution in terms of required ethics as opposed to suggested ethics and standards? Professor Morgan.
Prof. Thomas D. Morgan: No. I think it’s clear that Congress has the authority to regulate the conduct of lower court federal judges, just that it creates the lower courts. But I think the standards, the substantive standards, should be the same in each case. Just to complete the thoughts that I was making in partial answer to Michael and Rebecca, what I would suggest is that when a justice receives a suggestion or hears about it even, about that they should recuse themselves in a pending matter, the justice ought to write a short memorandum, circulate it to the other members of the Court. If three of those justices—that’s not a magic number, but it’s less than four and it’s not just a single person—said that they believe the justice should reconsider and that in fact the justice should recuse himself or herself, then the matter could be set for hearing by the full Court and that the Court could prevent the justice from sitting.
My own view is that you’d never get that far. That gets back to the internal workings of the Court, the idea of congeniality. I think that realistically you’d never get that far, but the public would have a sense that there is a systematic way in which justices consider what it is they ought to be doing, when it is they ought to be recused from a matter. And I don’t view that as threatening. I do view congressional intervention as threatening because I think those -- I think the motives and the incentives on the congressmen and senators could be antithetical to appropriate separation of powers.
Dean Reuter: Professor Krauss, I’m going to come back to you. Is there consensus that there’s really a problem here now or even in the modern era? Do we have a problem that needs fixing? Are the justices getting it done by themselves? I mean, you see recusals with at least not infrequently by Supreme Court justices. They’re aware of standards certainly.
Prof. Michael I. Krauss: Yes, there’s a problem. The problem is a subset of the problem of the politicization of the Court that has endured ever since perhaps the Bork confirmation hearings. And I think these things bubble up in many different ways and arguable recusal is one of the ways in which this has bubbled up after a judge’s confirmation. Mostly, of course, it bubbles up before a confirmation. But once the confirmation is done, there are different ways to attack, and recusal is one of them. I mostly agree with essentially everything that Professor Roiphe said. Let me elaborate, gloss on this a little bit, and link it up to a comment that Tom made.
The Supreme Court does have all sorts of norms. I’m not exactly sure exactly what they are. These are sociological norms that it’s hard to write down if you’ve not been an insider. I have a child who’s been an insider who refuses to talk to me too much about some of these things for quite good reasons of confidentiality. But I do recall knowing about what happened to Justice Douglas when he was -- towards the end of his career when he was mentally -- let us say mentally incapacitated to some extent. There’s no formal rule about this, but the Supreme Court took care of this in formal ways that preserved the collegiality. Those who are interested can easily find literature talking about this, so I won’t elaborate too much. Just to say that it’s similarly, if you get an outrageous violation of recusal standards, we probably already have norms in place, sociological norms in place, to deal with this without having to have recourse possibly to the objective, say three-justice rule that might lead to increasing politicization for all I know.
The only other gloss I’ll make is that the Code of Conduct that applies expressly to all federal judges except the Supreme Court was, as was mentioned I think by Tom, a product of the Judicial Conference, which is almost exclusively composed of inferior judges, circuit and district court judges. And it would be remarkable if those folks could have a binding effect on the Supreme Court of the United States. So there is one Supreme Court. They are the Supreme Court. They’re not bound by lower courts. Another reason to let them handle it, I see no evidence that they’ve been really poorly handling it. I’ll close with that.
Dean Reuter: Professor Roiphe, I’m going to pick up on something you said and give you a chance to expand if you want and that is the problem of making, I guess bringing accusations or claims against the Court and how the institution might suffer from that problem. We’ve seen, I guess, in the recent years some attacks on the Court. I would describe them as attacks on the way the Court uses its processes. Can you say, if you will for a minute, focus on what that means if you’re a lawyer doing that? As a lawyer, presumably you have a duty to report illicit conduct by a judge. But do you have a corresponding duty to be -- what’s the level of care you need to make as a lawyer bringing accusation against a sitting justice or judge?
Prof. Rebecca Roiphe: I mean, that’s a great question, and it goes back, I think, to something that you were saying before, which is about the public perception of the Court. So what is it that -- I agree, that the public perception of the Court has suffered since Bork. I think that’s a good enough place to put our marker, so what to do about that problem. So one thing that we could do is we could say more recusal is necessarily better. That will help the public perception of the Court, just anytime there could possibly be anybody thinks that there’s a public clamor, like just get out. I don’t think that that’s right. I think that, in fact, will reinforce the notion that judges are political and just simply deciding things politically. So not more recusal. How about more transparency? I actually think more transparency. Tom’s suggestion, I’m fully on board. More transparency, better, right? Just let us know what’s going on and give us an explanation, I think that helps no matter what.
Okay. Then, to your final point, which is about commentators, I actually think commentators—my position is more as an outsider than as a lawyer—but I do think for one certainly, if you’re not representing a client and you are a public commentator and expert, like one of any of the three of us on this panel, that one has an obligation to confront one’s own biases. Because I do think that you see people and they aren’t being honest brokers. They’re consistently making comments that are serving their own political agenda. And to me, that adds to this notion of politicism. There is no such thing as neutrality. It’s like everybody’s on a side fighting. All the justices must be on a side fighting. You’ve said the Court has become completely degraded and exaggerated your claim in order to make a point.
So my position is, I suppose, definitely neutral commentators have an obligation to try their best to be neutral and unbiased in the way they apply these rules. And even lawyers have an obligation to tone down the rhetoric and actually think about identifying real points at which a judge has not abided by his ethical responsibility and ask for consequences based on the law, the body of law that’s out there. Because otherwise, we have this sense that ethics is this loose thing that we can just use as a weapon against our political enemies. And I think we all need to take a step back and only use ethics when it’s -- at least a call for consequences when it’s a hundred percent supported by the case law, the rules, the way the rules are consistently applied in the past.
Dean Reuter: Professor Krauss or Morgan, any thoughts on those issues.
Prof. Thomas D. Morgan: Amen.
Prof. Michael I. Krauss: I certainly agree with the advisability of writing a one paragraph memo to one’s colleagues indicating, “You know, I’ve had calls for me to recuse, and here is why I’m not recusing.” I think that’s great. Maybe that’s done right now but in a less formal way. It may well be done in a less formal way, and maybe that is fine. Maybe the Court does not see the problem that the general public sees. In the case of Justice Thomas, he has been the object of criticism for a long time by those who did not favor his appointment to the Court in the first place. In his case, perhaps I can explain his lack of public justification for not recusing himself by the fact that he’s had so many darts thrown at him over the years that it’s not unreasonable for him to just put on blinders and ignore them.
Dean Reuter: I’m going to get the audience questions soon. One thing I think our description mentioned is the free speech issue—I don’t know if it explicitly mentions that or not—but held here presumably by Justice Thomas’s wife. It’s been said that husbands and wives don’t necessarily agree. They often disagree. Are there free speech considerations? How does this weigh? What do we have to say about spouses of justices—not just judges, but justices—giving up a public persona or even a public job or their personal views? How does that weigh in here, or does it?
Prof. Thomas D. Morgan: I think it’s a red herring issue, Dean. That is to say I don’t think any of you thinks seriously about this thinks that Mrs. Thomas does not have the right to speak on issues. Obviously, if she engages in criminal activity, she is subject to the law like anybody else. The fact that she has strongly held views on this or any other issue I don’t think that there’s any serious argument that she doesn’t have the right to speak. The question is whether what she says or the issues on which she chooses to speak have an impact on Justice Thomas’s obligations to recuse. And I think the answer to that is, if she were saying, “I think that X ought to win,” in a particular case before the Court, it would be a closer matter. But even there probably, the statute and indeed I think any reasonable set of rules would not make public statements by a justice’s spouse a basis for recusal on a general policy of a general question.
Prof. Rebecca Roiphe: I guess I would jump in and say I don’t know that I see it quite as much as red herring as you do, Tom. Because certainly, I think most people -- many people who are concerned about professional speech of judges say recusal is a better mechanism, for instance, than rules that just directly limit what judges can say. And I’m of that opinion too. If a judge goes and gives a speech at a forum, I’m not concerned, and I think that should be protected. But the question is always when it comes to speech. What is the link between limiting that speech and a valid government interest? And in the recusal, you say it’s pretty obvious. The link is so that we can be sure that they’re not being biased. It’s the integrity of the judiciary That’s a compelling government interest. But when we get to the point of it’s about whether their integrity can reasonably be questioned, then I start to think in the shadow of the First Amendment. I don’t know, because that’s such a vague government interest. And I don’t know what would be narrowly tailored to achieve that. Because some the things people think are so obviously furthering it, to me I worry that those things are in fact undermining it. And it’s really hard to prove.
Again, I think you’re right. It’s not a major First Amendment issue because of the posture of these cases. But I also think professional speech is really important. And then when we’re one step away and we’re talking about the justice’s wife’s speech reflecting on his ability to sit, I do think that that would ultimately, if we required recusal under those circumstances, that would shelf spouses from saying things, from being a part or politically active where they want to be politically active, and that’s troubling. It’s troubling in the modern era where we don’t have spouses who just sit at home and take care of children. In many to most couples, there are two people who are active in public life.
Prof. Michael I. Krauss: I’ll just add that we have an example, relatively recent example, not of a spouse but of a justice herself who intervened publicly to express a very strong opinion. We can all remember the late and regretted Justice Ginsberg who made a speech. I don’t have it in front of me. But if I recall, she said that one of the candidates for president was a faker, was a fraud, and she wouldn’t want to live in a country under this person who was then subsequently elected. Now, what should happen if one of that president’s signature policies was brought before the Court, if its constitutionality was questioned? Should that justice recuse herself? I don’t recall Justice Ginsberg indicating that she planned to recuse herself every time this would happen. I don’t think that that is what occurred.
And I guess I’d like to come back to the text of 455A, that section that’s really not very much applied but that states the basis genus of it all, and that is that it’s not that your integrity is questioned. It’s that your impartiality might reasonably be questioned. So I suppose that Justice Ginsberg, were she with us today, would say, “Well, no, it’s one thing -- what I think of this man is one thing, but I’m perfectly capable of impartially looking at his legislation and determining whether his legislation violates the Constitution as I interpret it. And I’m bound in my interpretations by my vision of the Constitution and by precedent, et cetera.” If the justice herself can be as expressive as Justice Ginsberg was, then it doesn’t even seem to be a close question whether the spouse of a justice can opine on these matters. It just seems an easy case for me.
Dean Reuter: But I don’t know if our experts can see the questions in the Q&A function. We’re going to turn to some of those now. If you see one that you like, feel free to speak up and interject. There’s a question from Gabe Roth. I’ll read it. “Waiting for the justices to impose an ethics code is akin to Waiting for Godot. The choices are do nothing or ask Congress either to write a code for the justices themselves or to write a law that says, ‘Either write a code yourself, or we’ll take away your discretionary budget of $143 million.’ Do you see either of those as possible, or do we just continue on under the status quo threatening the Court’s discretionary budget?”
Prof. Rebecca Roiphe: I mean, I’ll jump in and say I don’t think those are options. I think that some of the ways in which some of the proposals are worded, they were worded so carefully. They say like, “We would urge the Court. We suggest the Court,” and I’m okay with that. I mean, have a conversation either through legislation or pick up the phone and say you should probably do that. That seems okay to me. Ordering a co-equal branch to do something like that or threatening them doesn’t seem appropriate. And there are all sorts of problems that end up being somewhat frustratingly unsolved because we have this system with checks and balances. And so, I’m sympathetic with the frustration, but I sort of think we’re stuck with it in a lot of situations.
I mean, think about how, on a totally different topic, how frustrated people were when Congress couldn’t enforce its subpoenas. We’re like, “Where’s the Court, and why can’t” -- it is frustrating when you think this is the law, and it’s not being enforced. But sometimes the medicine is worse than the disease. And to me, really pushing at the walls of the separation of powers is just not a smart idea.
Dean Reuter: Professor Krauss or Morgan.
Prof. Michael I. Krauss: I don’t think the problem is as -- the solution proposed seems drastic to me. Drastic solutions should only be considered when there’s an acute and drastic problem, and I don’t see the problem being as drastic as the comment implies that it is. I do see another -- Dean, you asked if we could --
Dean Reuter: Please, go ahead.
Prof. Michael I. Krauss: -- [inaudible 38:57] one another. I see another one—I don’t know if it intrigues my two colleagues the way it intrigues me—and that is by Christopher Aquilina at 1:23 pm. And he says his problem is related, is a first cousin, to the recusal, and that’s the person who says at the confirmation hearing, “I think white,” then when it comes to votes is, “I vote black even though I sort of said I was going to vote white.” What do we do about that? That’s sort of a tricky issue. First of all, the way -- so my answer is sort of twofold. First of all, in confirmation hearings these days, very rarely do you prospective justices say, “I think white. Here’s what I think on this issue.” Rather, they say, thanks to Justice Ginsberg and the precedent that she created about this, “I really can’t answer these questions.” Now, we may suspect very strongly what he or she would say on an issue, but they don’t really say it. So let me—I don't know Mr. Aquilina at all—but let me hazard a guess as to what he’s talking about.
People have often said there are all these Georgetown cocktail parties. And you attend enough of these Georgetown cocktail parties, and you start to absorb the Washington Post editorial page as the uber Constitution. And so, you start to modify your views on things. And so, I don’t think -- if that’s what is being discussed here, if that’s what’s really happening here, then I don’t think that is a problem that is resolvable by any other than structural means, some of which I’d be in favor of. I wouldn’t have been -- I wouldn’t be opposed to an amendment saying that at age 75 or 80 or whatever, the term expires of a justice, and a new justice will be made. That would be dependent on something objective like age and not something like what one thinks, how one’s views on the matter have changed. So again, I think searching for a pinpoint answer to these problems, I think it’s much more complex and subtle.
Dean Reuter: Anyone else on that question? We’ve talked, a couple of times, I’ve heard the term co-equal branch and Congress’s ability vis-à-vis a co-equal branch. Is it really any co-equal branch, or is it the judiciary in particular? Does the judiciary need to be more independent from the legislative branch than does the executive branch? Doesn’t the legislative branch exercise all sorts of powers over the executive? Just what is it about the judiciary if that’s true?
Prof. Rebecca Roiphe: Well, I mean, it goes to what we’ve been talking about this whole time which is politicization of the judiciary. And the point is that if a political branch has control over the judiciary, then there could be repercussions that come from powerful political groups when a judge rules a certain way. And that seems like an obvious threat to the integrity of the judicial branch. And so, when we talk about these other threats, threats in terms of the perception and so forth, we have to think about weighing it against this other concern which is what’s at stake in the separation of powers here. So I think that’s an excellent point that you really brought up there.
Dean Reuter: Anybody else? Professor Morgan, were you going to say something?
Prof. Thomas D. Morgan: No. I’ve been tentative here because I had been talking to a member of Congress who had some influence who said, “You know, the thing I worry about is that the judges will kind of get their act together on these issues so that me and Congress don’t have things to get upset about in connection with the courts.” One of the reasons I’m encouraging the courts to get their -- get on top of these issues is that I think that it will moderate the need for other solutions. And one of the reasons we’re seeing such a collection of kind of oddball things that people want Congress to do is that there is this lack of sense that the courts are taking the matter seriously. I think if they do that, then they can more readily step back into the position of real moral authority.
When a court issues a decision, it has to rely on the executive branch to enforce it in many cases. And it has to have a level of moral authority that gives its independent status force and effect. And so, that’s why I’m with Rebecca that you don’t pass this legislation, but I’m still over here saying let’s take away the basis on which we get this kind of crazy talk sometimes because people aren’t confident that the courts are taking it seriously.
Prof. Rebecca Roiphe: Also, I mean, one thing to bear in mind is what’s the enforcement mechanism of any of these proposals that could actually go into effect. With regard to recusal, recusal, even for lower court judges, is not a disciplinary question. It’s a question that is reviewed by the individual judge and then reviewed on appeal. So what would you do with regard to the Supreme Court? You could have, I suppose, some supreme-er court, but even that seems like it has some constitutional problems. And if you give power to the Judicial Conference, you’re basically giving power to lower courts to regulate the highest court constitutionally of the land. So that seems problematic.
What are we left with? To me honestly, the only solution I think is for the Supreme Court to do something on its own. And I suppose I’m a little more reticent maybe even than Tom about saying exactly what they should do, that in other words having not sat as a justice, having not -- it’s an institution in which that I’m familiar with only from the outside, and I don’t really know how do we create norms. How do we encourage all of the members to follow those norms? Is it a code? I mean, it’s certainly transparency. I think certainly transparency. But beyond that, I don’t really what the right answer is.
Prof. Thomas D. Morgan: I agree that we don’t want a situation where the judicial conference somehow gangs up on the Supreme Court. What I was trying to suggest is that judicial conferences are very well recognized and very conscientious body. They have a very thorough, a very complete set of rules. If the Supreme Court says we adopt the rules that govern federal judges except that—we don’t have the circuit to committees that can discipline a judge in that circuit—therefore this is how we’re going to do it at the level of the Supreme Court or that a given rule doesn’t apply to members of the Supreme Court for the following reasons. I could understand that. And in that sense, you could imagine the Supreme Court writing its own rules. But realistically, I think the simple direct solution is to simply have the Court say, “We consider ourselves subject to ethical standards. They are outlined in the Code of Conduct for United States Judges. And here is how we’re going to do it,” do it with, in my view, a series of memoranda and internal process that will guarantee that a substantial majority of the Court believes with the justice that recusal is not required.
Prof. Michael I. Krauss: While we’re talking about things, let me float another problem. We actually have in the county a certain number of retired justices. The number varies, of course, over time, but they are there. Why couldn’t they—I’m thinking out loud—why couldn’t they be used to fill? Rebecca was exactly right that one of the reasons why Supreme Court justices are loathe to recuse is because there’s nobody to replace them, unlike a circuit court judge and unlike a district court judge. But to the contrary, there actually is a potential body of people who have been approved by the senate as Supreme Court justices. They are there. Sometimes, perhaps, there might not be any with us, but usually there are some. Could they be called on? If that were the case, if they could be called on, if legislation were such that could be called on to fill the gap, would there be more recusals? That’s a very interesting question, I think, that we could think about. My guess would be at the margin, there would be more recusals because people would be less afraid of a tied Court.
Dean Reuter: The question that came in at 1:30 when I observed -- Professor Krauss has a baseball poster behind him. And I’ve always heard that the most vociferous, most brazen managers, when they go out to argue a call, they’re not really looking to affect that call. They’re arguing for the next call in the future. The question that comes in at 1:31 sort of alludes to a chilling factor, that there’s a campaign against Clarence Thomas in particular and that it’s a long game maybe of trying to affect his behavior one way or another or constrain him. Maybe there’s a chilling effect on spouses with accusations like this. Have we talked about the chilling effect of some of these—accusation is too hard a word maybe—but some of these goings on, and what do our experts think about the possible chilling effect on the institution?
Prof. Michael I. Krauss: Well, in the case of Justice Thomas, you’ve got somebody who is the most senior associate justice. He’s been on the Court a long time. He’s no longer the young man that he was when he appointed to the Court. And so, I do think that there’s a view that if you keep piling on, if you keep piling and piling and piling on, at some point he will say, “The heck with it. It’s not worth it.” That might have been less likely 20 years ago, but today is today. And so, yes, I do think it’s not coincidental that there were calls for Justice Thomas to resign because of age and at the same time with this accusation that he should have recused himself. Does that mean that there’s some kind of explicit conspiracy as opposed to a whole bunch of people thinking roughly the same way about strategy? I think it’s more likely the latter.
Dean Reuter: If those are lawyers bringing these cases, then what’s animating -- not cases, and that’s what’s animating their complaints is a campaign to get a justice to retire or to recuse, what does that say about some of their earlier points we were talking about, the responsibilities of lawyers vis-à-vis the Court in policing the conduct of the Court but doing so in good faith?
Prof. Rebecca Roiphe: I mean, I’ll jump in and just say I agree with the implications of your question, which is I think there’s a real tone question in which what we’re talking about is, of course, holding people who are in positions of power to account is something that we should always do. But there’s a point at which it becomes so frantic, the call, and so one-sided that it ends up possibly doing more harm than good and I do think harm to the institution. I don’t think the institution benefits if Justice Thomas feels in some way cowed. Now, he has an obligation not to be cowed, and I don’t think there’s much indication that he would be cowed.
I do think one should think about one’s motives, and I also think it’s just one of those things that can happen below the surface, like people of really good meaning just -- it’s like where did your eyes go. Why are you only noticing this when it comes to Justice Thomas? Just pause for a second. Because there are a lot of people even that I’ve seen comments who are good, honest brokers who are noticing this on both sides of the aisle, who are careful to be even-handed about what they’re doing. If you only notice ethics abuses of somebody who’s your political adversary, I would just pause for a second and think why. Maybe it’s only my attention when it comes from that one person. And I think that people who have a megaphone should be careful about that. Again, not that they should be quieted or silenced or anything like that, but I do think just as a matter of practice it would be good if people thought about that and the potential effect it could have.
Dean Reuter: Great. Well, we’ve got about five minutes left. I want to give each of a chance to express a final thought. We’ll go in the same order we did when we opened. There’s a lot of questions still on the table if anybody wants to take a bite at one of those. But a final thought, Professor Morgan.
Prof. Thomas D. Morgan: Well, Dean, being that I think I’ve had plenty of opportunity to spell out my views, I do think that the question’s important. I think it’s nonpolitical in the sense that both sides, lawyers from both sides, people from both sides, can present the problem and can be as blind or focused as Rebecca was suggesting in being improper. But I do think there’s a solution. I think the Court appropriately should take it on itself to acknowledge the need to follow some systematic ethical analysis of questions presented to share the obligation of voting on recusal with their fellow members of the Court not simply treat it as an individual matter for the justice. And I think if they do that, we’ll be moving in the right direction.
Dean Reuter: Professor Krauss, final thought.
Prof. Michael I. Krauss: Yeah. I mean, just to summarize some of the threads in this really interesting hour—it’s been interesting for me—so some people use recusal motions as strategic ammunition for future cases or maybe to wear down a judge. Some people feel to the contrary—and I’m looking at a couple of these comments right now—that it’s sort of like the police. They’ll always defend themselves and you ask for -- you can’t even ask for recusal of a lower court judge because they’ll turn you down and then they’ll be biased against you for the rest of the trial. If it goes up to appeal, gosh, they’ll always protect each other. And so, you got the idea that there are too few recusal requests as opposed to too many recusal requests. So this is really an issue that is extraordinarily complex.
And I’ll just close by saying that I once spoke to a—he’s deceased now—Ninth Circuit judge, Judge Noonan, whom many of you may remember, who very famously in a Ninth Circuit case called Codispoti had been asked to recuse himself. This was a case about the constitutionality of laws that prohibit protests around abortion clinics. They’d asked him to recuse himself because he was a devout Roman Catholic who had written articles before he became a judge on the evils of abortion. And he declined to recuse himself, quite correctly in my opinion, talked about religious tests. I spoke to him at a conference afterwards, and he said, “You know, I really thought about resigning. That was so disgusting. That hurt me so badly that I came close there to saying it’s just a tax on me that’s too high.” So let’s keep that in mind that that’s a possible negative side effect here.
Dean Reuter: Professor Roiphe, a final thought?
Prof. Rebecca Roiphe: Yeah. I mean, I’ll just say I think we’re weirdly caught between two views of judging, this sort of old traditional view that judges sit in this box and are completely isolated and their stay-at-home wives are completely isolated from the world and don’t have any political views and only call balls and strikes, and a more nuanced understanding of what judging is. And that’s part of why we’re doing such a bad job at promoting the integrity of the judiciary. And I think that some of the proposals that my co-panelists have suggested are actually very good ways of trying to remedy that. Transparency, standards, I think that that’s absolutely true. I don’t think the public is incapable of understanding this basic idea, which is judges have all sorts of views. They have political beliefs, oftentimes very strong ones. And then they can still sit on cases, and it doesn’t mean they’re doing exactly what politicians are doing. And so, I think in order to save the reputation of the Supreme Court and lower courts too, we need to figure out a way through judicial ethics rules and otherwise of promoting that kind of realistic notion of what judges do.
Dean Reuter: Well, we are on the hour. And I want to thank our experts for the discussion. I think this has been fascinating. I’ve learned a lot myself, and I appreciate your time and your thoughtfulness. Also, thanks to the audience. Sorry we didn’t get to more of your questions. But I did think we did cover a lot of territory. A reminder to the audience to check your emails and monitor The Federalist Society website for upcoming events. But until the next event, we are adjourned. Thank you very much everyone.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.