Last week the Supreme Court released a Code of Conduct signed by all nine Justices. The Court’s statement preceding the Code says that it “largely represents a codification of principles that” the Justices had “long regarded as governing [their] conduct.” Unsurprisingly, the Code did not appease critics who have raised questions about recent revelations of Justice Clarence Thomas’s acceptance of extravagant largesse as well as other Justices’ questionable conduct.
And for good reason. By the Court’s own admission, the concerning conduct occurred at a time when the principles the Code now makes explicit were already operating as what the Court’s statement calls “the equivalent of common law ethics rules.” To be sure, making the rules explicit could make their meaning clearer, but critics (including me) have also questioned the Code’s likely efficacy, given that it contains no enforcement mechanism.
Can anything be done? According to Justice Samuel Alito, the Supreme Court answers to no one. Earlier this year, he told two interviewers for the Wall Street Journal that the Constitution gives Congress no “authority to regulate the Supreme Court—period.” As I wrote here on Verdict in August, that’s nonsense. Various provisions of federal law already impose at least some minimal ethical obligations on Supreme Court Justices, and of course, the Constitution expressly grants Congress power to regulate the Court’s appellate jurisdiction, a power that Congress has exercised since the Founding.
To be sure, Congress has heretofore refrained from applying the rules that govern lower federal court judges to Supreme Court Justices, but that is a matter of legislative grace, not constitutional obligation. Should Congress find itself unsatisfied by the Court’s efforts at self-regulation, it could enact new laws applicable to Supreme Court Justices that are modeled on the rules that apply to lower federal court judges. As I explained on my blog last week, Congress could create mechanisms for investigation of credible allegations of misconduct and provide for sanctions against violators.
The Recusal Problem and the Pinch-Hitter Solution
However, the rules applicable to lower court judges cannot be applied identically to the Supreme Court because, as the newly released Code itself explains, “[l]ower courts can freely substitute one district or circuit judge for another,” but because “[t]he Supreme Court consists of nine Members who sit together,” a recusal means an absence and thus an imbalance. Quoting a somewhat infamous 2004 explanation by Justice Antonin Scalia for why he didn’t recuse himself in a case involving his friend and hunting companion Vice President Dick Cheney, the Code goes on to say that “the loss of one Justice is ‘effectively the same as casting a vote against the petitioner. The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.’”
Whatever one thinks of Justice Scalia’s non-recusal in the 2004 case, the general principle seems correct. The cost of recusal in the Supreme Court is higher than in the lower federal courts. As a consequence, the Code explains, sometimes Supreme Court Justices sit on cases when a lower court judge might be obligated to recuse. By the same reasoning, it would be difficult to impose temporary ineligibility to hear cases as a penalty for a Supreme Court Justice’s misconduct, even though that is an available option under the statutory provision governing enforcement of the conduct rules for lower federal court judges.
But what if there were a way to reduce the cost of recusal or disqualification at the Supreme Court? In a 2011 article in the Duke Law Journal, Professor Lisa Tucker and I argued that Congress could and should authorize retired Supreme Court Justices to pinch-hit for recused or otherwise unavailable Justices. As we explained, retired Supreme Court Justices are eligible to hear cases on federal district courts and federal appeals courts but not their own former Supreme Court. We noted further that the pinch-hitter idea was not original to us. It had been first proposed by the then-Chair of the Senate Judiciary Committee, Senator Patrick Leahy—who in turn had gotten it from retired Justice John Paul Stevens.
The new interest in judicial ethics at the Supreme Court makes the pinch-hitter proposal timely once again, but it might not be adequate. There are currently four living retired Justices. Justice Sandra Day O’Connor is not available, having withdrawn from public life after her dementia diagnosis five years ago. In principle, Justices Anthony Kennedy, Stephen Breyer, and/or David Souter could occasionally pitch in, but they are, respectively 87, 85, and 84 years old. Voters who are concerned about President Joe Biden’s age might likewise think that relying on elder statesmen to ensure the functioning of a Supreme Court code of ethics is suboptimal.
Accordingly, if Congress wanted to enact a version of the pinch-hitter scheme, it might wish to supplement the roster of available substitutes with federal appeals court judges. That too would require a statutory change, but it should be workable. Federal district court judges sometimes serve “by designation” on federal appeals courts and vice-versa. So too, some judges sit from time to time in regions outside of their usual appointment. It would not take much ingenuity to amend the U.S. Code to provide for such substitution at the Supreme Court level.
The “One Supreme Court” Constitutional Objection
When Professor Tucker and I championed the retired-Justice pinch-hitter idea in 2011, we confronted a constitutional objection that it would violate the requirement in Article III that there be “one Supreme Court.” If the Court’s membership shifts based on who’s available and who’s recused, the objection goes, there is not a single Court.
For reasons Professor Tucker and I spelled out in our article, the “one Supreme Court” objection places more weight on that phrase than it seems to be able to bear. I won’t rehash our response except to say that throughout U.S. history, Congress has tinkered with the Supreme Court’s jurisdiction, its size, and the duties of its Justices—which, for many years included doing double duty as Supreme Court Justices and lower court judges when “riding Circuit.” Providing for an occasional substitute does not, in my view, depart from either the plain meaning of “one Supreme Court” or the overall historical pattern.
There is, however, an important difference between relying on retired Justices and relying on federal appeals court judges to pinch hit. The former were confirmed to the Supreme Court; the latter never were. Even then, there is a non-trivial argument that all judges and Justices who have been through Senate confirmation are effectively interchangeable. How else to explain the permissibility of federal district judges serving by assignment on federal appeals courts? Nonetheless, in my view, the long tradition of regarding a seat on the Supreme Court as qualitatively different from other judicial positions means that if Congress were to authorize federal appeals court judges to sit on the Supreme Court, even if only as occasional substitutes, it probably ought to also provide a special designation for the eligible pinch hitters and expressly hold confirmation hearings to judgeships so designated—at least for already-confirmed appeals court judges.
Ultimately, the more serious obstacle to a pinch-hitter scheme is political, not constitutional. Replacing a recused conservative Justice with a liberal pinch-hitter or vice-versa would be highly controversial. A system of random assignment could reduce the likelihood of strategic behavior, but in the current political environment, it is difficult to imagine congressional Republicans agreeing to such a scheme. With a 6-3 supermajority of Republican appointees on the Supreme Court, they would likely wager that replacing a recused or disqualified Justice would more often move the needle to the left than to the right.
What about more creative options? The law in some states provides that a Governor can fill a Senate vacancy only with a member of the same party as the person who most recently occupied the seat. One could come up with a similar scheme for Supreme Court pinch-hitters, but doing so would require Congress to admit how political the Court’s work is.
Accordingly, Congress is unlikely to adopt a pinch-hitter statute that would make appropriate recusals from the Supreme Court more frequent. But here as elsewhere, the best should not be the enemy of the good. There are other important steps that Congress can take to reduce the appearance (and perhaps the reality) of impropriety at the Supreme Court—beginning with enactment of a stricter ethics code that includes actual enforcement mechanisms.