Supreme Court needs to adopt a code of ethics and a better system for
handling recusals. Above all, the Court needs to begin treating
recusals seriously, as matters involving legal and constitutional
rights, rather than as matters calling for the simple exercise of
judicial discretion. The Justices need to articulate standards and give
reasons for their decisions, if they are to act, and to be perceived as
acting, in the way in which courts normally are thought and expected
And while I agree with Professor Lubet that the Justices of the Supreme Court, like all other judges, should be subject to an integrated code of conduct that details their ethical responsibilities with as much precision as the subject matter allows, this agreement raises substantial additional questions: what role, if any, should Congress have in solving these problems? For example, can or should Congress require the Court to adopt a specific code of conduct, as H.R. 862 purports to do, or should it simply require that the Court adopt some code of conduct of its choosing?
I also agree that the Court should institute a more effective mechanism for handling recusals — meaning a mechanism that encourages greater deliberation, consistency, and transparency in decision-making, gives appropriate weight to constitutional values in adjudication, facilitates objectively reasonable results, and promotes public confidence in the administration of justice. And yet I have some question as to whether en banc consideration of recusal motions necessarily would provide the best solution to the problem. Given the Justices’ apparently longstanding reluctance to take the subject as seriously as it warrants, I question whether en banc consideration would necessarily lead to more deliberation or to better or more consistent results. Might not the requirement of en banc consideration simply produce recusal determinations that are formally styled as constituting decisions “by the Court,” while actually being determinations that have been left, more or less, to the discretion of an individual Justice? Might not this diffusion of responsibility result in even less accountability? In addition, en banc consideration might not be conducive to the development of that sense of individual responsibility that is essential to the proper disposition of those cases in which possible grounds for recusal exist, but no motion has been filed, either because the putative movant is not aware of the relevant facts or because he or his lawyer believes that the potential costs or possibly negative repercussions of filing such a motion are too great.