UPDATED – 1/3/12 @4:30 pm to include commentary in response to the Chief Justice’s report.
In case you missed it last weekend (what with New Year’s and all), United States Supreme Court Chief Justice Roberts released his year-end report on the state of the federal judiciary. Normally, the report highlights areas of concern for the judiciary (i.e., judicial shortages on the bench or lack of funding) and focuses on “less controversial” issues. And, while the appendix of the report contained summary statistics on the federal court and its workload, the body of the Chief Justice’s report was devoted to a single issue. The Chief Justice focused on ethics in his report — specifically, he offered a “vigorous defense” of the Court’s own ethics issues, which have been criticized from the left and right over the presumed participation of various justices in the upcoming health care cases (e.g., Justice Elena Kagan and Justice Clarence Thomas).
In deciding whether to recuse, Chief Justice Roberts noted that individual US Supreme Court justices must
decide for themselves whether recusal is warranted under [28 U.S.C.] Section 455. They may consider recusal in response to a request from a party in a pending case, or on their own initiative. They may also examine precedent and scholarly publications, seek advice from the Court’s Legal Office, consult colleagues, and even seek counsel from the Committee on Codes of Conduct.
Recusal by a Justice of the US Supreme Court means that a less-than-full court will consider matters. This so-called “duty to sit” makes it harder for a Justice to recuse him/herself. “[I]f a Justice withdraws from a case, the Court must sit without its full membership.” As Chief Justice Roberts stated,
A Justice cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.
The LA Times responded to Chief Justice Roberts’ report with this editorial. In it, the editorial concludes:
The decision to participate in — or withdraw from — a controversial case is a weighty one, especially on the Supreme Court, where one recusal creates the possibility of a 4-4 tie. But when a justice complies with, or rejects, a serious request to withdraw from a case, the public deserves an explanation.
The contrast between the US Supreme Court and the Ohio Supreme Court regarding the issue of recusal is interesting. Ohio’s court offers a more practical set of procedures for recusal. In April 2011, the Ohio Supreme Court adopted a rule governing recusals (Rule 14.6 of the Rules of Practice of the Supreme Court of Ohio). Further, the Ohio Constitution (Section 4.02(a)) requires that seven jurists decide issues before the Ohio Supreme Court, by allowing the Chief Justice to designate an appellate judge to sit by assignment on the Ohio Supreme Court.
The issue of recusal and judicial ethics is one in which the US Supreme Court will continue to face in the coming year. And, it is an issue that the Ohio Supreme Court has largely avoided — largely because of the Ohio Constitution’s flexibility in requiring seven justices site for every case.
UPDATE – 1/3/12 @ 4:30 pm
The Atlantic published a critique of the report over the weekend. In a follow up to the initial report, The Atlantic includes a response from a federal district judge about the Chief Justice’s report. The author of the piece, Andrew Cohen, who is now the chief legal analyst for CBS News and 60 Minutes, notes that:
There is always an inherent gulf between the justices, who hear a tiny fraction of all cases that come before them, and the rank-and-file federal judges who decide the merits of tens of thousands of cases each year. But that gulf is wider today in the wake of the chief justice’s remarks.