James J. Sample (Hofstra University, Maurice A. Deane School of Law) has posted The Supreme Court And The Limits Of Human Impartiality on SSRN. Here is the abstract:
There is a systemic failure in Supreme Court judicial ethics which, without remedy, will continue to corrode the public’s trust and the Court’s legitimacy. The acute problems are not limited to jurists of any particular ideological stripe. Indeed, the illustrative instances of concern detailed in Part V of this Article range from Justices Alito and Thomas to Justices Kagan and Sotomayor. All of whom are iconic jurists. In our polarized era, the tendency is to see nearly every issue through a partisan lens. Viewing robust judicial ethics in this manner is reductionary at best.
The problem, perhaps with isolated exception, is generally not the people. Though brilliant, Supreme Court Justices are human.4 They make mistakes. The problem is the ad hoc, uneven system. The repeated failures of Justices nominated by Democratic and Republican Presidents alike to recuse themselves in cases—where if they were lower court judges they would have to recuse—means that recusal can no longer be analyzed as a series of idiosyncratic one-offs. While surely each instance is unique, collectively there is a troubling and conscious choice not to solve the problem. Fair, impartial courts with rigorous processes and enforcement mechanisms benefit all Americans, regardless of partisan differences.
While reasonable minds can disagree on the close calls in individual cases, it is unreasonable to conclude that the Supreme Court’s systemic, repeated failure—and even its steadfast refusal—to police itself in the area of judicial ethics is anything other than a serious concern. The Supreme Court is not by itself in terms of Justices getting put into questionable scenarios, but as Senior District Judge Michael Ponsor stated, “You don’t just stay inside the lines; you stay well inside the lines. This is not a matter of politics or judicial philosophy. It is ethics in the trenches.”
Years of institutional boilerplate lip service, against a background of increasingly egregious, even brazen disregard for basic norms of judicial ethics, conflicts with the Court’s obligation to maintain the appearance of impartiality. That is significant. Not only does the appearance of partiality affect the litigants, it is detrimental to the rule of law and public confidence in the Court. As the Supreme Court itself has explained, “justice must satisfy the appearance of justice.” The Eighth Circuit described it this way: “[I]t is essential to protect the judiciary’s reputation for fairness in the eyes of all citizens. This reputational interest is not a fanciful one; rather, public confidence in the judiciary is integral to preserving our justice system.”
