Should Supreme Court Justices Have a Code of Conduct?
Justices decide for themselves whether or not they should recuse from cases because of an ethical conflict. LAW’s Jack Beermann explains why
Two US Supreme Court justices. Two critically important, history-making cases. Two questions of conflict of interest. Two completely opposite decisions by justices that sparked controversy and questions of ethics, morals, and court conduct.
First up, Clarence Thomas: When the Supreme Court heard arguments in a September case about the January 6, 2021, attack on the US Capitol, there were calls that Thomas should recuse himself. His wife, Ginny Thomas, had been a vocal supporter of President Donald Trump and a fierce denier of the 2020 election results. Could Clarence Thomas really hear arguments about that historic day objectively, knowing his wife could one day face her own subpoena from Congress? Thomas said he could, and refused to recuse himself.
Next up, Ketanji Brown Jackson: When the Supreme Court heard arguments in October about whether to uphold affirmative action in a case involving Harvard University, Jackson faced questions about her ties to Harvard. As a Harvard alum and member of the Harvard Board of Overseers, she decided the conflict was clear and she recused herself.
Throughout the 233-year history of the US Supreme Court, the justices have always policed themselves, without any government oversight or even any internal committee. We spoke with Jack Beermann, a BU School of Law professor of law and Philip S. Beck Professor, about why justices have always been permitted to decide for themselves whether or not to hear a case, and we got his thoughts on the recent decisions by the justices.
This interview has been condensed and edited for clarity.
With Jack Beermann
BU Today: Can you first just give us a little background. Justices have always had this freedom, correct?
Beermann: The Supreme Court decides for itself, each justice decides for themselves. It’s a long tradition. Another good example of the issue came when Justice Antonin Scalia was deciding a  case involving [former Vice President] Dick Cheney. The argument that was made was that Scalia had taken a ride on Cheney’s official plane to a hunting trip, and they were buddies, and people said he shouldn’t be deciding Cheney’s case. But the only person who could decide if he should recuse was Scalia himself. He said, in his view the person [Cheney] had nothing to do with the office of vice president, and he wasn’t going to recuse himself. He said it was not unusual to have casual relationships with government officials.
The times when judges recuse themselves are when they worked on the actual matter before the court. Elena Kagan recused herself on cases she had worked on as solicitor general. These days, I think that judges recuse themselves when they are hearing a case that they heard previously as a lower court judge. The federal disqualification statute applies to all federal judges and justices, but the Supreme Court justices have final say on their own recusal simply because there’s no higher court to appeal to.
BU Today: So, does that mean you think Thomas and Jackson made the right decisions?
Beermann: I think those are totally different situations. Ketanji Brown Jackson was basically asked to hear arguments involving Harvard, where she had sat on the board that was coming before the court.
For Thomas, the fact that his wife is politically identified with the cause and he may be identified with the very conservative wing of the Republican Party, that’s not within the tradition of when judges recuse themselves. There have been many justices over the centuries strongly associated with certain political movements, and they have not been expected to recuse themselves whenever those political movements are involved in a case.
BU Today: So, it sounds like you agree with both decisions by the justices.
Beermann: I wouldn’t say I agree, but I don’t think that there is a strongly developed norm that would require them to recuse themselves. Whether it would have been better to avoid the appearance of bias and [for] the outcome of the case—well it might. But that’s partly because we are in such a hyper partisan period.
BU Today: Do you think that given where we are politically today, justices should be more aggressive in recusing themselves, or not, unless it’s a blatantly obvious conflict?
Beermann: Let me put it this way: I’d be very hesitant for any external force to try to impose reform on the Supreme Court. There could be bad consequences. It could be like the tail wagging the dog. There are a lot of problems with the Supreme Court, in terms of how justices are selected, the way they behave when they are on the court, why they get life tenure, and what that means for the legacy of a president who just by luck of the draw gets a lot of appointments. But the recusal aspect is just a tiny aspect of that. It would be much better to focus on reforming other aspects of the court’s behavior.
BU Today: What about some sort of external, bipartisan body that could consider these questions?
Beermann: It would be an interesting separation of powers question, if Congress tried to impose a stricter set of requirements on the Supreme Court. Would that violate the court’s independence? There are requirements imposed on lower courts.
BU Today: So, it sounds like you think that Supreme Court justices should be allowed to continue policing themselves?
Beermann: I think there are certain rules they ought to follow. If they own stock in a company they should recuse themselves from hearing any case involving that company. If they are on the board of an organization, they should recuse themselves from hearing any case involving that board. Maybe the court as a collective could make its rules.
BU Today: Should the justices themselves be policing each other more?
Beermann: Well, perhaps. What if the justices as a collective decide to impose binding rules on themselves. But if justices can vote to disqualify another justice from hearing a case, in theory it sounds good if you thought the justices were trustworthy in applying neutral rules in a fair way. But I don’t think you have a Supreme Court you can trust right now that can apply rules of law in a neutral and fair way. They seem to be experts at twisting things to meet their political agenda. You could imagine where five justices keep recusing the other four. It’s unlikely to happen. But I don’t know if I trust the court, even as a collective, to do anything right now.