Liberals Are Wrong to Trash the Supreme Court’s New Code of Ethics

Would an individual justice avow that all the code means is
that, while it would be nice to recuse from adjudicating a case faced with a
blatant conflict, he or she doesn’t have to? If the circumstances were as flagrant as, say, a case involving an
investigation that could result in criminal liability for either the justice or
his or her spouse, would a majority of the justices stand by and acquiesce in
the resulting institutional damage? That seems especially remoteand
dangerous for the court’s stature
since the statute, Section 455, which both
judicial code provisions purport to implement, is unequivocally mandatory.

A second potential escape route noted by critics, and
portentously emphasized by the Commentary that purports to constitute the
Code’s legislative history, is an obscure doctrine called the “rule of
necessity.” The Commentary underscores
that this “time-honored rule of necessity may override the rule of
disqualification.”
Immediately preceding the Commentary’s eyebrow-raising
rollout of this doctrine is a lengthy exposition of the assertion, often
deployed by Chief Justice Roberts, that, unlike lower court judges, a recused
Supreme Court justice cannot be replaced by a suitable substitutethereby
changing the intra-court dynamic or even the outcome of a case.

An obvious implication of this frame could be that even the
most flagrant conflict of interest circumstances could be overridden, as
“necessary,” in cases where recusal could change a 5–4 decision to a 4–4 tie,
or even in all cases, if one took seriously the Commentary’s lament that
losing one justice “may undermine the fruitful exchange of minds which is
indispensable.” Hence, this conception
of the obscure, judge-made “necessity” doctrine would wipe out altogether not
only the court’s new recusal rule but the authorizing statute, Section 455a
literally absurd, hence legally indefensible, result.