"Breyer's recusal complicates outcome in environmental cases"

Reuters carries the story about Justice Breyer's dual recusals in environmental cases (where he would probably side with the regulators), apparently because of his brother's participation in the matter as a judge in a lower court. Our very own Richard Painter is quoted in the article.

Comments

[Monroe Freedman]

Richard is quoted as saying, "I am surprised with Justice Breyer's recusal. There is no financial interest involved here," Painter said. "I don't think the public would have thought him to be non-independent."

I disagree. A financial interest isn't required. Breyer shouldn't be reviewing his brother's decision.

I don't mean to suggest that Breyer is, in general, sensitive to his ethical responsibilities. See Judicial Impartiality in the Supreme Court - The Troubling Case of Justice Stephen Breyer, 30 Okla. City Univ. L. Rev. 513 (2005).

[Richard W. Painter]

There is no provision in the code of conduct stating that a judge cannot review a decision of a court because his brother was one of the judges who participated in that decision. Judges who are close colleagues on a court often have a relationship with each other that is closer than that of brothers, particularly with respect to opinions they share with each other on the law. Yet we do not insist that judges not review decisions by former colleagues on a lower court. And what about Justice Kagan’s close relationship with people in the Department of Justice and elsewhere in the Obama administration? No recusal required there either.

I respect Justice Breyer's decision if he believes it would be difficult for him to be impartial in this case, but I am not comfortable assuming there is a categorical rule that a judge cannot review judicial or administrative decisions of a sibling, parent or other relative serving on a court or elsewhere in government.

This recusal could change the outcome of an important case (there is no other Justice to replace him -- presumably they cannot use one of the retired Justices for that purpose). I hope it was truly necessary for him to recuse.

[Monroe Freedman]

You say above that "justices should recuse [themselves]from certain cases, particularly demands for recusal of a justice because of family relationships with persons who are not (i) parties in the case, (ii) lawyers in the case, or (iii) financially interested in the outcome of the case."

But not if the justice has a family relationship with a judge in the case?

The relevant provision, of course is 455(a).

And the statute is self-executing. It doesn't depend, as you suggest above, upon a motion from a party.

[Richard Painter]

The statute provides:
"(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

A case in which a justice might need to publicly disagree with the views of his brother is not a case in which the justice's impartiality might reasonably be questioned absent special circumstances. For example it could be possible that a justice's brother allows family relationships to be harmed by people having opinions different from his own, or perhaps the brother has an ego problem with a brother being on the Supreme Court, in which case it is the brother who should not be a judge. I do not see evidence of that in this case.

The answer is not to interpret the statute to provide that every single decision in which the brother participated is subject to review by only eight justices of the Supreme Court.

The statute contains numerous specific recusal requirements that are categorical, regardless of what a reasonable person might think. I would not interpret the language "impartiality might reasonably be questioned" to create additional specific categories of situations in which recusal is always or even usually required. Congress was well aware of the fact that judges have siblings who are also judges and other government officials, and chose not to categorically require recusal in these situations. A case by case approach is instead what is required.

[Monroe Freedman]

Richard, You say: "it could be possible that a justice's brother allows family relationships to be harmed by people having opinions different from his own, or perhaps the brother has an ego problem with a brother being on the Supreme Court, in which case it is the brother who should not be a judge. I do not see evidence of that in this case."

Would you really expect the Justice to provide you with evidence that his brother has an ego problem, etc.? And perhaps the problem is that he loves and respects his brother and would have difficulty disagreeing with him.

With Breyer's several, serious failures to recuse himself when required to do so, it seems odd to take him to task in a case in which, presumably, he knows his own relationship with his brother and has chosen not to explain it to the world.

[Richard Painter]

The justice can and should recuse when he believes it appropriate. It is the precedent that I am concerned about. Other judges and justices need not recuse in this situation.