OPINION
GUEST ESSAY
Jamie Raskin: How to Force Justices Alito and
Thomas to Recuse Themselves in the Jan. 6 Cases
May 29,
2024
A white chain in the foreground, with the pillars of
the Supreme Court Building in the background.
By Jamie
Raskin
Mr. Raskin
represents Maryland’s Eighth Congressional District in the House of
Representatives. He taught constitutional law for more than 25 years and was
the lead prosecutor in the second impeachment trial of Donald Trump.
Many people
have gloomily accepted the conventional wisdom that because there is no binding
Supreme Court ethics code, there is no way to force Associate Justices Samuel
Alito and Clarence Thomas to recuse themselves from the Jan. 6 cases that are
before the court.
Justices
Alito and Thomas are probably making the same assumption.
But all of
them are wrong.
It seems
unfathomable that the two justices could get away with deciding for themselves
whether they can be impartial in ruling on cases affecting Donald Trump’s
liability for crimes he is accused of committing on Jan. 6. Justice Thomas’s
wife, Ginni Thomas, was deeply involved in the Jan. 6 “stop the steal”
movement. Above the Virginia home of Justice Alito and his wife, Martha-Ann
Alito, flew an upside-down American flag — a strong political statement among
the people who stormed the Capitol. Above the Alitos’ beach home in New Jersey
flew another flag that has been adopted by groups opposed to President Biden.
Justices
Alito and Thomas face a groundswell of appeals beseeching them not to
participate in Trump v. United States, the case that will decide whether Mr.
Trump enjoys absolute immunity from criminal prosecution, and Fischer v. United
States, which will decide whether Jan. 6 insurrectionists — and Mr. Trump — can
be charged under a statute that criminalizes “corruptly” obstructing an
official proceeding. (Justice Alito said on Wednesday that he would not recuse
himself from Jan. 6-related cases.)
Everyone
assumes that nothing can be done about the recusal situation because the
highest court in the land has the lowest ethical standards — no binding ethics
code or process outside of personal reflection. Each justice decides for him-
or herself whether he or she can be impartial.
Of course,
Justices Alito and Thomas could choose to recuse themselves — wouldn’t that be
nice? But begging them to do the right thing misses a far more effective course
of action.
The U.S.
Department of Justice — including the U.S. attorney for the District of
Columbia, an appointed U.S. special counsel and the solicitor general, all of
whom were involved in different ways in the criminal prosecutions underlying
these cases and are opposing Mr. Trump’s constitutional and statutory claims —
can petition the other seven justices to require Justices Alito and Thomas to
recuse themselves not as a matter of grace but as a matter of law.
The Justice
Department and Attorney General Merrick Garland can invoke two powerful textual
authorities for this motion: the Constitution of the United States,
specifically the due process clause, and the federal statute mandating judicial
disqualification for questionable impartiality, 28 U.S.C. Section 455. The
Constitution has come into play in several recent Supreme Court decisions
striking down rulings by stubborn judges in lower courts whose political
impartiality has been reasonably questioned but who threw caution to the wind
to hear a case anyway. This statute requires potentially biased judges
throughout the federal system to recuse themselves at the start of the process
to avoid judicial unfairness and embarrassing controversies and reversals.
The
constitutional and statutory standards apply to Supreme Court justices. The
Constitution, and the federal laws under it, is the “supreme law of the land,”
and the recusal statute explicitly treats Supreme Court justices like other
judges: “Any justice, judge or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably
be questioned.” The only justices in the federal judiciary are the ones on the
Supreme Court.
This
recusal statute, if triggered, is not a friendly suggestion. It is Congress’s
command, binding on the justices, just as the due process clause is. The
Supreme Court cannot disregard this law just because it directly affects one or
two of its justices. Ignoring it would trespass on the constitutional
separation of powers because the justices would essentially be saying that they
have the power to override a congressional command.
When the
arguments are properly before the court, Chief Justice John Roberts and
Associate Justices Amy Coney Barrett, Neil Gorsuch, Ketanji Brown Jackson,
Elena Kagan, Brett Kavanaugh and Sonia Sotomayor will have both a
constitutional obligation and a statutory obligation to enforce recusal
standards.
Indeed,
there is even a compelling argument based on case law that Chief Justice
Roberts and the other, unaffected justices should raise the matter of recusal
on their own (or sua sponte). Numerous circuit courts have agreed with the
Eighth Circuit that this is the right course of action when members of an
appellate court are aware of “overt acts” of a judge reflecting personal bias.
Cases like this stand for the idea that appellate jurists who see something
should say something instead of placing all the burden on parties in a case who
would have to risk angering a judge by bringing up the awkward matter of
potential bias and favoritism on the bench.
But even if
no member of the court raises the issue of recusal, the urgent need to deal
with it persists. Once it is raised, the court would almost surely have to find
that the due process clause and Section 455 compel Justices Alito and Thomas to
recuse themselves. To arrive at that substantive conclusion, the justices need
only read their court’s own recusal decisions.
In one key
5-to-3 Supreme Court case from 2016, Williams v. Pennsylvania, Justice Anthony
Kennedy explained why judicial bias is a defect of constitutional magnitude and
offered specific objective standards for identifying it. Significantly,
Justices Alito and Thomas dissented from the majority’s ruling.
The case
concerned the bias of the chief justice of Pennsylvania, who had been involved
as a prosecutor on the state’s side in an appellate death penalty case that was
before him. Justice Kennedy found that the judge’s refusal to recuse himself
when asked to do so violated due process. Justice Kennedy’s authoritative
opinion on recusal illuminates three critical aspects of the current
controversy.
First,
Justice Kennedy found that the standard for recusal must be objective because
it is impossible to rely on the affected judge’s introspection and subjective
interpretations. The court’s objective standard requires recusal when the
likelihood of bias on the part of the judge “is too high to be constitutionally
tolerable,” citing an earlier case. “This objective risk of bias,” according to
Justice Kennedy, “is reflected in the due process maxim that ‘no man can be a
judge in his own case.’” A judge or justice can be convinced of his or her own
impartiality but also completely missing what other people are seeing.
Second, the
Williams majority endorsed the American Bar Association’s Model Code of
Judicial Conduct as an appropriate articulation of the Madisonian standard that
“no man can be a judge in his own cause.” Model Code Rule 2.11 on judicial
disqualification says that a judge “shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be questioned.”
This includes, illustratively, cases in which the judge “has a personal bias or
prejudice concerning a party,” a married judge knows that “the judge’s spouse”
is “a person who has more than a de minimis interest that could be
substantially affected by the proceeding” or the judge “has made a public
statement, other than in a court proceeding, judicial decision or opinion, that
commits or appears to commit the judge to reach a particular result.” These
model code illustrations ring a lot of bells at this moment.
Third and
most important, Justice Kennedy found for the court that the failure of an
objectively biased judge to recuse him- or herself is not “harmless error” just
because the biased judge’s vote is not apparently determinative in the vote of
a panel of judges. A biased judge contaminates the proceeding not just by the
casting and tabulation of his or her own vote but by participating in the
body’s collective deliberations and affecting, even subtly, other judges’
perceptions of the case.
Justice
Kennedy was emphatic on this point: “It does not matter whether the
disqualified judge’s vote was necessary to the disposition of the case. The
fact that the interested judge’s vote was not dispositive may mean only that
the judge was successful in persuading most members of the court to accept his
or her position — an outcome that does not lessen the unfairness to the
affected party.”
Courts
generally have found that any reasonable doubts about a judge’s partiality must
be resolved in favor of recusal. A judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” While
recognizing that the “challenged judge enjoys a margin of discretion,” the
courts have repeatedly held that “doubts ordinarily ought to be resolved in
favor of recusal.” After all, the reputation of the whole tribunal and public
confidence in the judiciary are both on the line.
Judge David
Tatel of the D.C. Circuit emphasized this fundamental principle in 2019 when
his court issued a writ of mandamus to force recusal of a military judge who
blithely ignored at least the appearance of a glaring conflict of interest. He
stated: “Impartial adjudicators are the cornerstone of any system of justice
worthy of the label. And because ‘deference to the judgments and rulings of
courts depends upon public confidence in the integrity and independence of
judges,’ jurists must avoid even the appearance of partiality.” He reminded us
that to perform its high function in the best way, as Justice Felix Frankfurter
stated, “justice must satisfy the appearance of justice.”
The Supreme
Court has been especially disposed to favor recusal when partisan politics
appear to be a prejudicial factor even when the judge’s impartiality has not
been questioned. In Caperton v. A.T. Massey Coal Co., from 2009, the court held
that a state supreme court justice was constitutionally disqualified from a
case in which the president of a corporation appearing before him had helped to
get him elected by spending $3 million promoting his campaign. The court,
through Justice Kennedy, asked whether, quoting a 1975 decision, “under a
realistic appraisal of psychological tendencies and human weakness,” the
judge’s obvious political alignment with a party in a case “poses such a risk
of actual bias or prejudgment that the practice must be forbidden if the
guarantee of due process is to be adequately implemented.”
The federal
statute on disqualification, Section 455(b), also makes recusal analysis
directly applicable to bias imputed to a spouse’s interest in the case. Ms.
Thomas and Mrs. Alito (who, according to Justice Alito, is the one who put up
the inverted flag outside their home) meet this standard. A judge must recuse
him- or herself when a spouse “is known by the judge to have an interest in a
case that could be substantially affected by the outcome of the proceeding.”
At his
Senate confirmation hearing, Chief Justice Roberts assured America that “Judges
are like umpires.”
But
professional baseball would never allow an umpire to continue to officiate the
World Series after learning that the pennant of one of the two teams competing
was flying in the front yard of the umpire’s home. Nor would an umpire be
allowed to call balls and strikes in a World Series game after the umpire’s
wife tried to get the official score of a prior game in the series overthrown
and canceled out to benefit the losing team. If judges are like umpires, then
they should be treated like umpires, not team owners, team fans or players.
Justice
Barrett has said she wants to convince people “that this court is not comprised
of a bunch of partisan hacks.” Justice Alito himself declared the importance of
judicial objectivity in his opinion for the majority in the Dobbs v. Jackson
Women’s Health Organization decision overruling Roe v. Wade — a bit of
self-praise that now rings especially hollow.
But the
Constitution and Congress’s recusal statute provide the objective framework of
analysis and remedy for cases of judicial bias that are apparent to the world,
even if they may be invisible to the judges involved. This is not really
optional for the justices.
I look
forward to seeing seven members of the court act to defend the reputation and
integrity of the institution.
Jamie
Raskin, a Democrat, represents Maryland’s Eighth Congressional District in the
House of Representatives. He taught constitutional law for more than 25 years
and was the lead prosecutor in the second impeachment trial of Donald Trump.
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