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SCOTUS to the World: Do as I Say, Not as I Do?

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By Casey C. Sullivan, Esq. on October 18, 2016 12:59 PM

When it comes to its decisions on ethics, judicial recusals, even civil rights, is the Supreme Court being hypocritical, creating one standard for lower courts and another for itself? That's the argument Gabe Roth, executive director of Fix the Court, made in a recent New York Times op-ed.

Roth points to the Court's precedence on recusals, protest zones, and even the justice's ages as signs that the Court's might want to jettison its "equal justice under law" motto for "do as we say, not as we do."

Not Exactly Leading by Example

Roth's thesis is pretty straight forward:

Each year, the justices hear a handful of suits that have parallels with how they act as stewards of their institution. But instead of changing their own practices in light of their holdings in these cases, the justices too often carry on as before, as if they can play by their own rules when it comes to transparency and accountability.

The justices should, Roth concludes, "consider how, by acting more consistently with their own rulings, they could help build a more open and accountable institution."

So what inconsistencies does Roth spot? The most obvious is with recusals. While federal law requires "any justice, judge, or magistrate judge" to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned," Supreme Court recusals are largely up to the justices themselves. After all, there is no higher court to turn to should you disagree with a justice's recusal decision.

Recusal Confusal

That remains the case despite the Court's recent ruling last June creating a narrow, mandatory recusal requirement. In Williams v. Pennsylvania, the Court ruled that "there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case."

Justice Kagan joined that majority opinion, but, as Roth argues, her "significant involvement" in defending the Affordable Care Act as Solicitor General did not cause her to recuse herself when ACA challenges reached the Supreme Court. However, it's worth noting, as others have, that Justice Kagan was no longer Solicitor General by the time any ACA appeals would have required her involvement and her deputy solicitor general, Neal Katyal, supervised that litigation.

Roth cites other examples of alleged hypocrisy as well. For example, he points to Justice Breyer's financial stakes in certain decisions and the Court's refusal to hear a challenge to no-protest rules that applied to its own plaza. With the latter decision, the Court condoned, Roth writes, "an anti-protest buffer zone in front of their courthouse - even though the Supreme Court has deemed anti-protest buffer zones around abortion clinics unconstitutional."

Finally, there's the matter of age. In 1991, the Court upheld a Missouri requirement that justices retire at age 70, with Justice Sandra Day O'Connor writing that "It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age." Justice Scalia, Roth notes, stayed on the bench well past 70. Justice Kennedy, who has now been a justice for 30 terms, turned 80 this summer.

Does Roth have a point? Certainly, at least when it comes to recusals.

While the example of Justice Kagan may have been off the mark -- she has, indeed, been remarkably consistent about recusing herself from cases on which she worked as solicitor general -- more consistent standards around recusals and the justice's financial entanglements with the parties that come before them could reduce the appearance of conflicts of interest significantly. The Court's appearance of impartiality, as an institution, would be best served if recusals weren't left up to the whims, and sometimes weak background research, of individual justices.

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