The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for May, 2011

Supreme Court Justices Do Not Mind Being “Bound” by an Ethics Code so Long as They Are Not “Legally” Bound by an Ethics Code

Posted by judicialethicsforum on Sunday, May, 1, 2011

In a recent House budget hearing, Supreme Court Justices Breyer and Kennedy responded to questions from Rep. Jose Serrano (D-NY) regarding recent calls to bind the Supreme Court to the Code of Conduct for United States Judges.  Justice Kennedy responded first by stating the “Code of Conduct does apply to [us], in the sense that we have agreed to be bound by them.”  He further stated that following the rules of ethics is “part of our oath and part of our obligation.”  Justice Kennedy went on to caution, however, that it would be “structurally unprecedented” and a “legal problem” for the Judicial Conference of the United States (composed of district and circuit judges) to bind the Supreme Court to its rules. 

Justice Breyer responded to the same question by stating that the Supreme Court Justices should be bound by the rules of ethics.  He did not, however, believe that they were bound in a “legal” sense, and any such binding should not be accomplished by legislation.  He also emphasized a few times that he follows the same rules—and the same procedures for interpreting those rules—as district and circuit judges.  He then arguably contradicted himself by adding that being a Supreme Court Justice requires “you to think about it in a different way,” because unlike other federal judges, “you have a duty to sit.”  [For a good work on the elusive “duty to sit,” see Jeffrey W. Stempel, Chief William’s Ghost: The Problematic Persistence of the Duty to Sit, 57 Buff. L. Rev. 813 (2009); see also Keith Swisher, Pro-Prosecution Judges, 52 Ariz. L. Rev. 317, 372-73 (2010).]

A video recording of the hearing can be seen here (the relevant testimony runs from approximately minute 26:00 through minute 33:00).

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New Scholarship: Geyh Summarizes Federal Disqualification Law

Posted by judicialethicsforum on Sunday, May, 1, 2011

The Federal Judicial Center has released the Second Edition of Judicial Disqualification: An Analysis of Federal Law.  This free monograph was put together by Professor Charlie Geyh, whose name alone almost guarantees quality work.  [The treatise is a revised and expanded edition of Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144, published in 2002 (also by the Federal Judicial Center).]  Here is the Table of Contents for reference:

I.    History of Disqualification

II.   Disqualification Under 28 U.S.C. § 455

    A.    Overview

    B.    Grounds for disqualification

    C.    Disqualification procedure

III.  Disqualification Under 28 U.S.C. § 144

    A.    Overview

    B.    Grounds For disqualification

    C.    Disqualification Procedures

IV.  Disqualification Under 28 U.S.C. § 47

V.   Disqualification on Appeal

    A.    Routes of appellate review

    B.    Standards of review

    C.    Issues on appeal

    D.    Disqualification under 28 U.S.C. § 2106

Appendix: Code of Conduct for the United States Judges, Canons 3C and 3D

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Justice Kagan Receives the Latest Call for Recusal from Health Care Reform

Posted by judicialethicsforum on Sunday, May, 1, 2011

Supreme Court Justice Elena Kagan is the latest Justice to draw attention on whether she should recuse herself from ruling on the recent health care legislation.  The attention on Kagan follows repeated requests for Justice Thomas to recuse himself from the case, as well as the recent law professors’ letter to Congress and the proposed bill to impose recusal rules on the Supreme Court (Supreme Court Transparency and Disclosure Act).

Kagan drew attention after the Department of Justice released internal emails between DOJ officials discussing possible defenses to the Affordable Care Act.  The now Acting Solicitor General, Neal Katyal, forwarded an email regarding a white house meeting on the topic to then Solicitor General, Elena Kagan. 

Katyal’s email:

“This is the first I’ve heard of this.  I think you should go, no?  I will, regardless, but feel like this is litigation of singular importance.” 

Kagan’s reply email:

“What’s your phone number?” 

Various websites have been speculating whether she actually discussed the health care legislation and did not want to create a written record. 

The Atlantic’s editorial can be read here.

The National Review’s article can be read here.

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