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After weathering revelation after revelation about Clarence Thomas taking undisclosed gifts from wealthy donors and Sam Alito taking private jets to luxury resorts (and then downplaying his relationship to the litigant who flew him there, unaware that Above the Law covered them fawning all over each other in 2009), the Supreme Court had an ethics problem and Chief Justice Roberts committed to solving it. And by “committed,” he meant getting his colleagues to sign perfunctory rehash of the ethical rules that bind lower court judges — lightly edited to protect the justices from having to give up some of their favorite boondoggles, of course.
One of the most important goals of the ethics code was developing a consistent and transparent recusal policy. Dating back to past centuries — cue the Originalism music — the recusal obligation carried an expectation that the justice would explain the reason for recusal. As soon as the Chief hinted at an ethical code, Justice Kagan began including explanations for her recusals, ultimately becoming the first to cite the new, much-ballyhooed (by Roberts anyway) ethical code in a recusal.
This week, the Court saw more recusals and a distinct gap in ethical execution.
One justice explaining a recusal and one … not. pic.twitter.com/fG5Q2GNILS
— Steve Vladeck (@steve_vladeck) January 16, 2024
In limited defense of Alito, the code only requires the recusing justice to opt out if any of the 3B conditions are meant. And while providing transparency is the clear purpose of the rule and in accord with historical precedent, the code failed to set out “and you will identify your reason for disqualification.”
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It’s probably for an entirely benign reason. But if he starts identifying the reason for his recusals here, people are going to expect them the next time a billionaire litigant throws him a birthday party, so best practice is definitely to embrace the appearance of impropriety!
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.