Article by Donald K. Sherman,* Marco Alarid White,** & Virginia Canter***

3 Fordham L. Voting Rts. & Democracy F. 185

In this Article, we analyze the federal disqualification statute applicable to federal judges, magistrates, and Justices of the Supreme Court as compared to the disqualification provisions of the United States Supreme Court Code of Conduct and detail the ways in which the standards contained within the Code are contrary to law and history. To provide proper context, we examine the history, case law, and statutory framework that have created the current standards of judicial disqualification for all Article III judges and Justices. We demonstrate that the Court is bound to apply disqualification procedures in accordance with the United States Constitution, common law, and existing statutes. Our analysis also shows that the Court, in its Code of Conduct, has incorrectly claimed that the common law concepts of the “duty to sit” and the “rule of necessity” act as exceptions to statutorily imposed disqualification duties when in fact neither concept factors into the analysis of whether a Justice must disqualify themselves from considering a case. Finally, we propose legislative changes to remove any possible ambiguity regarding the requirements of the law of disqualification.

Introduction

The nine justices of the United States Supreme Court preside over the highest court in the land, enjoy life tenure without facing election, and can only be removed by impeachment. The Court is the least transparent and accountable branch of our government. Yet its Justices are subject to the least stringent ethical code for any government employee. After a series of very public scandals—including Justices accepting and failing to report lavish gifts from individuals with business before the Court—there was understandable public outrage, including petitions, congressional hearings, and calls for criminal investigations and impeachment of multiple Justices. Responding to the historic crisis of confidence facing the federal judiciary, the Supreme Court issued a non-binding Code of Conduct. But the Code lacks independent oversight and enforcement, and, taken at face value, undermines the existing laws governing judicial disqualification, serving as a pretext for the Court to further escape public accountability in their recusal decisions.

Judicial impartiality, and the public’s faith in that impartiality, are fundamental to the Supreme Court’s authority over the rule of law in America. If the public is to treat the opinion of an unelected, unaccountable Court as the final word on the law, especially those of historic consequence, the public must believe that the Court works impartially. To preserve the public trust, partial judges—even those who simply appear partial—are disqualified from hearing a case. They have a legal and ethical obligation to recuse themselves.

The federal judiciary, and the Court in particular, occupy a unique place of public trust. In our system of checks and balances, the Justices of the Court are largely insulated from enforcement and accountability mechanisms; they do not face election, are not subject to the Freedom of Information Act or other transparency laws, do not have an independent internal watchdog like an Office of Inspector General, and cannot be removed except through impeachment for high crimes and misdemeanors. Individual Justices are responsible for making disqualification determinations for themselves, which are not subject to any independent review or enforcement and cannot be appealed to the rest of the Court.

Given that the American public, through the Constitution, exempts the Justices from election and term limits, the public should reasonably expect the Court to be the most ethical, and the least politically motivated, of the three branches. Yet, the Court has, in recent years, been subject to public scrutiny in light of egregious ethical violations and apparent conflicts of interest.¹ Some of the most publicized scandals include Justices Samuel A. Alito Jr. and Clarence Thomas’ non-recusals from matters connected to the January 6th insurrection, which involved their respective wives, literally and figuratively, flying the flag of the Stop the Steal movement.² Other notable recusal matters concerned spousal income and personal gifts made to the Justices by wealthy individuals or persons with business before the Court.³

In response to overwhelming media, public, and congressional scrutiny of these abuses, the Court issued a Code of Conduct. Although this code might become the basis for a legally binding ethical code in the future, at present, it is non-binding and lacks an independent mechanism for adjudicating recusals, investigating alleged misconduct, and carrying out enforcement when violations occur. Perhaps even more concerning, the language of the Court’s recently adopted code appears to modify or obscure the well understood legal obligations and administrative procedures that define a Justice’s recusal duties.

The Justices are already bound by common and statutory law to disqualify themselves to preserve the appearance of impartiality. Federal statutes also provide procedures to resolve cases when any number of Justices must recuse themselves: the law of disqualification, codified at 28 U.S.C. § 455, applies to all federal judges and Justices, including those on the Court. Section 455 has the full force of congressionally enacted law and, as such, cannot be easily overridden. The most consequential amendment to the statute, which establishes the modern law of disqualification, passed by overwhelming bipartisan margins before being signed into law by President Gerald R. Ford in 1974.⁴ The Court has historically interpreted Section 455 to require judicial disqualification based on an objective appearance of impartiality standard, which uniformly applies to the federal judiciary.⁵

In November 2023, the Court issued a Code of Conduct that set out the ethical obligations of the Court as understood by the Justices. It did so in apparent response to the overwhelming public scrutiny of their apparent ethical abuses. The document, as described by the Justices, “gather[s] in one place the ethics rules and principles that guide the conduct of the Members of the Court,” indicating even this codified document is mere suggestion, not binding authority.⁶ Unlike when the other branches promulgate ethical reforms, the Court neither held public hearings nor solicited public comments before making these changes.

In their commentary to the Code, the Justices stated that the “Supreme Court consists of nine Members who sit together,” and noted that the disqualification provisions, “recognize the duty to sit and that the time-honored rule of necessity may override the rule of disqualification.”⁷ But the “rule of necessity” and the “duty to sit” are common law doctrines. They appear nowhere in Section 455 and have been interpreted consistently by the federal judiciary to not interfere with that statute. As such, the unelected Justices of the Supreme Court purport, by letter pronouncement, to invalidate the application of a crucial ethics law that was passed overwhelmingly by both chambers of Congress and signed into law by President Ford in the wake of the Watergate public corruption scandal.⁸ The Court’s position assumes it is more important for the Court to preside over cases as a group of nine, even when beset by conflicted interests, than to sit as an impartial lesser number. The arrogance of this assumption lies at the root of the crisis of ethics at the Court, and speaks to the American public’s historic lack of confidence in its credibility.

As a strict matter of fact, the Justices do not always sit together as nine. The Supreme Court makes decisions with fewer than nine signatures that carry the same weight as those issued by the full Court. The Justices also have no duty to hear every case in their appellate jurisdiction and can readily affirm the holding of a lower court when unable to hear a case because it lacks a quorum.⁹ Additionally, review on a writ of certiorari is discretionary and will only be granted for compelling reasons.¹⁰ The Justices do, however, have an affirmative duty to disqualify themselves in certain circumstances, in line with ethical, constitutional, and statutory standards.¹¹ While the Justices are currently accountable only to themselves regarding their decisions not to recuse, the Justices are still bound to follow the law.¹²

The purpose of this Article is to demonstrate that the Justices’ disqualification provisions in the Code of Conduct ignore, obscure, and distort major aspects of the law of disqualification as enacted by Congress. Many observers have rightly pointed out that the Code of Conduct is problematic in that it is at once regulated only by the individual Justices and unenforceable even by the Justices against one another.¹³ While Section 455 currently lacks an enforcement mechanism that applies to the Justices, its standards have been clearly set by Congress and previous federal court decisions. The Justices have an incontrovertible duty to faithfully apply those standards.

This Article will demonstrate that the Code of Conduct’s disqualification provisions give the Court a spurious authority which some Justices would choose to invoke in place of the lawfully binding and more stringent Section 455. This Article will also show that the Supreme Court’s statements regarding the application of the law of disqualification are contrary to statute, common law, and historic practice. In particular, this Article will demonstrate that the Court misconstrues the “duty to sit” and “the rule of necessity” in an effort to suggest that they supersede the law of disqualification, in complete disregard for the statutory process in place for deciding cases when the Court lacks a quorum of qualified Justices. This Article will show that the “rule of necessity” is a judicially created doctrine that should only apply in extraordinary cases where standard disqualification procedures would deny a litigant their right to a forum. Finally, this Article proposes methods of clarification which might bring the Court’s recusal practices in line with common law, historical practice, and the governing statutes.

I. Background

Following years of public scandal facing the Supreme Court, including matters of illegal receipt of gifts from individuals with business before the Court, failure to report those gifts, and credible allegations of conflicts and partiality,¹⁴ in June of 2023, the Court received its lowest ever public approval ratings.¹⁵ For an institution that lacks its own enforcement or budget authority, and derives its power from public consent, these polls are an especially damning assessment. That same month, respected legal minds expressed their dismay both at the lack of a binding code of ethics and the Court’s rationale for disregarding the law of disqualification.¹⁶ The height of the recent controversy followed public calls from Senator Dick Durbin and then-Congressman Adam Schiff for Justices Clarence Thomas and Samuel Alito to recuse themselves from cases involving the January 6th insurrection.¹⁷ In both cases, the Justices’ spouses had shown public support for the insurrectionist cause. Justice Thomas’s wife, Virginia, was even in direct communication with those plotting to interfere with the lawful certification of the 2020 election.¹⁸ Justice Alito blamed his spouse for flying a flag over their home that was the same as one carried by insurrectionists who stormed the Capitol on January 6th, 2021.¹⁹

Mrs. Thomas had, a few years earlier, been at the center of another non-recusal scandal. Justice Thomas failed to timely disclose that his wife had been compensated thousands of dollars by a conservative foundation that opposed the Affordable Care Act (“ACA”), then being litigated before the Court.²⁰ The Justice had a responsibility to disclose his wife’s source of income as part of his Ethics in Government Act disclosure duties and a separate duty to recuse himself if the payments to his wife gave the appearance of partiality.²¹ At that time, the Justice did not disclose his wife’s source of income, telling the public he had misunderstood the filing instructions on his federally mandated financial disclosures, and did not recuse himself from the ACA cases, nor did he issue any accompanying statements regarding his non-recusal.²² Justice Thomas did not issue any statement regarding his decision not to recuse himself in the cases heard before the Court relating to the January 6th insurrection.²³ Justice Alito issued a letter, discussed herein, in which he explained why he did not recuse himself from January 6th matters.²⁴

In January of 2025, the Judicial Conference of the United States rejected a request by members of the Senate Judiciary Committee to refer Justice Thomas to the Attorney General for a potential criminal investigation of his illegal failure to comply with federal financial disclosure laws in reporting gifts that he accepted.²⁵ The Conference chose not to refer the Justice Thomas matter to the DOJ, stating that he had issued amended disclosures in line with updated guidelines issued after the Justice’s alleged disclosure violations.²⁶ The Conference also openly doubted their own ability to refer any violation of a Supreme Court Justice to the Attorney General.²⁷ The Conference wrote:

[T]he Judicial Conference has never taken a position on whether its referral authority under 5 U.S.C. § 13106(b)—to refer judges to the Attorney General for investigation into whether they have “willfully” violated their reporting obligations—applies to Justices of the Supreme Court of the United States. The question, to be clear, is not whether the Ethics in Government Act applies to the Justices of the Court. It is whether the Judicial Conference’s referral authority applies to the Justices. There is reason to doubt that the Conference has any such authority.²⁸

Thus, one of the few possible checks on the Justices’ ethical behavior gives way to ex post facto justifications and vague notions about the inapplicability of standard judicial procedures to the Supreme Court. Once again, accountability for the least accountable branch of our government goes by the wayside.

When other Justices have recused themselves in recent years, they typically issue written statements explaining their decision.²⁹ For example, Justices Kagan and Jackson concurrently cite Section 455 and Canon 3B of the Code of Conduct when noting their recusal decisions.³⁰ Conversely, some conservative Justices, when they have recused themselves, do not generally issue an accompanying explanation.³¹ According to public reporting, in internal conversations regarding the Code of Conduct, several Justices reportedly emphasized the “duty to sit” as a justification for not recusing themselves in the presence of a conflict of interest.³²

While criticism of the Supreme Court’s ethical standards is nothing new, public concern about the Court’s perceived partiality has become increasingly commonplace.³³ Some major news outlets have taken it upon themselves to explain to their readers the opaque and seemingly arbitrary nature of Supreme Court recusal.³⁴ Members of the public far removed from academia and the practice of law have had plenty of reason to doubt the impartiality of the Supreme Court in several controversial cases.

In the Court’s November 2023 Code of Conduct, the Justices state that they comply with federal laws and regulations governing disqualification and judicial administrative procedure:³⁵

In addition to this Code of Conduct, the Justices also comply with: The Constitution of the United States, see, e.g., U.S. Const. Art. I, § 9, cl. 8 (foreign emoluments clause); Amdt. 5 (due process clause). Current laws relating to judicial ethics including, but not limited to 28 U.S.C. §§ 455, 2109; the Ethics in Government Act, 5 U.S.C. §§ 13101 – 13111, 13141 – 13145; the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342; Pub. L. 110-402, § 2(b), 122 Stat. 4255; and the Stop Trading on Congressional Knowledge Act of 2012, Pub. L. 112-105, §§ 12, 17, 126 Stat. 303; and Current Judicial Conference Regulations on: Gifts; Foreign Gifts and Decorations; Outside Earned Income, Honoraria, and Employment; and Financial Disclosure.³⁶

Despite the Supreme Court’s position as “the head of a branch of our tripartite governmental structure,”³⁷ the Justices do recognize some form of the law of disqualification.³⁸ Justices do regularly recuse themselves from cases and have acknowledged that some grounds for recusal are obvious.³⁹ Unfortunately, the process for recusal is left to individual Justices to police. The current process is inconsistent in its application and lacks transparency regarding a justice’s basis for recusal. The Supreme Court’s position regarding recusal, as recorded in the commentary of its 2023 Code of Conduct is as follows:

The Justices follow the same general principles and statutory standards for recusal as other federal judges, including in the evaluation of motions to recuse made by parties. But the application of those principles can differ due to the effect on the Court’s processes and the administration of justice in the event that one or more Members must withdraw from a case.⁴⁰

The Supreme Court takes a self-contradictory position that the statutory standards for recusal should apply, but that the Court may simultaneously be exempted from the law of disqualification because of its unique circumstances. The Court supports this position by invoking both the “duty to sit” and the “rule of necessity.”⁴¹ Neither support the Court’s position.

The rest of this Article will discuss the evolution of the Court’s position on disqualification, and the proper interpretation of the statutory and common law authorities covering disqualification. Any matter concerning Congress’s ability to regulate the Supreme Court necessarily raises questions concerning the separation of powers and the scope of Congressional authority. Other writers have thoroughly addressed the scope of Congress’s ability to impose an enforceable code of ethics on the Justices.⁴² This Article is more narrowly focused on drawing attention to the particular way in which the Supreme Court is attempting to undermine the proper interpretation of the law of disqualification with the Code of Conduct’s language.

II. Historical Interpretation of the Law of Disqualification

As evidenced by the legislative history of the statute establishing the law of disqualification, Congress clearly meant to preserve the public faith in the judiciary by mandating judicial disqualification when judges and justices appear partial. The Court has historically interpreted that statute, as well as the Constitution, to mean that judges and Justices must disqualify themselves when they objectively appear partial in a case. Finally, Justices of the Supreme Court have historically applied the federal disqualification statute to themselves and have based their recusal decisions on that statute. The Court must bring their recusal practices in line with historical practice, precedent, and the letter of the law.

A. Section 455

Section 455(a) of Title 28 of the United States Code imposes a duty that “[a]ny justice, judge or magistrate judge of the United States shall disqualify [themself] in any proceeding in which [their] impartiality might reasonably be questioned.”⁴³ Section 455(b) also specifies enumerated circumstances under which a Justice shall disqualify themself from hearing a case.⁴⁴ But section 455 was quite different before its 1974 amendment adding its current language.

Before the 1974 amendment, judges and lawmakers saw the “duty to sit” as a burden on judges and an impediment to the impartial administration of justice.⁴⁵ The problems posed by the “duty to sit” came to the attention of lawmakers via the case of Edwards v. United States.⁴⁶ The Edwards court issued no actual holding regarding a “duty to sit,” since the Edwards case was a criminal law decision regarding evidentiary matters in a gambling tax enforcement proceeding.⁴⁷ The case is more famous for the text contained within footnote 2 in which Judge Rives, the author of the opinion, explains his legal rationale for rehearing a case in which he had previously issued a dissent.⁴⁸ Judge Rives concluded his extensive footnote with a statement that reads very much like a plea to lawmakers, writing “[i]n the absence of a valid legal reason, I have no right to disqualify myself and must sit.”⁴⁹

One of the drafters of the amendment and an eminent scholar on judicial disqualification, John P. Frank, wrote that Section 455(a), “eliminates the so-called ‘duty to sit’ rule of Edwards v. United States . . . instead giving judges a reasonable latitude to disqualify where an appearance of unfairness may reasonably exist if they sit.”⁵⁰ Mr. Frank, who represented Ernesto Miranda in Miranda v. Arizona⁵¹ and assisted Thurgood Marshall in crafting arguments for Brown v. Board of Education,⁵² was both a dedicated scholar of the Supreme Court and an advocate for judicial ethics reforms.⁵³ Whereas Judge Rives “clearly regretted that he could not withdraw,”⁵⁴ the current Justices, as discussed in greater detail below, adopt an ahistorical view of the “duty to sit.”⁵⁵ They depict the “duty to sit” as something more akin to a right or entitlement, ignoring the history, clear language, and evidence of the Congressional intent behind the 1974 amendment that was meant to eliminate the “duty to sit” as previously understood in Edwards.

Prior to 1974, Section 455 mandated that a judge must disqualify themselves if they had a “substantial interest” in the case before them, or if other specific circumstances applied.⁵⁶ The amended Section 455(a) was meant to provide an objective and reasonable standard that could resolve Edwards-like situations in a manner that would enhance public confidence in the judicial system.⁵⁷ Congress, in the House Report on the 1974 amendment to Section 455, also warned that,

While the proposed legislation would remove the ‘duty to sit’ concept of present law, a cautionary note is in order. No judge, of course, has a duty to sit where his impartiality might be reasonably questioned. However, the new test should not be used by judges to avoid sitting on difficult or controversial cases.⁵⁸

Congress thus acknowledged the purpose and value of removing the “duty to sit” as then understood and acknowledged that a judge should not unreasonably disqualify themselves for subjective reasons not mandated by the statute. Congress’s cautionary tone does not detract from the fact that it wanted to impose a judicial duty to recuse when there is a “reasonable factual basis for doubting the judge’s impartiality.”⁵⁹ The law allows and obliges judges to recuse themselves in the interest of maintaining actual impartiality and the appearance of impartiality. Congress only warned that judges, after determining that they could appear impartial and that no specific grounds for recusal would apply, should not invoke Section 455(a) just to avoid sitting on a difficult or controversial case.

The Supreme Court in Liljeberg v. Health Services Acquisition Corporation, held “[t]he very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.”⁶⁰ In that case, the Court upheld a determination that a judge could not rule in a declaratory action that would determine the outcome of a construction project when the judge was a member of the board of a university that would be the beneficiary of the project.⁶¹ Though the Liljeberg Court acknowledged that the judge may not have had actual knowledge of the university’s interest at the time he ruled on the matter, on review, the judge was properly disqualified in the interest of maintaining the appearance of impartiality.⁶² Chief Justice Rehnquist, in his dissent, disagreed with the majority’s opinion that facts not known to the judge should have any bearing on disqualification, and yet he fully acknowledged that the “duty to sit” had been removed with the 1974 amendment to Section 455.⁶³

Section 455(e) also provides that parties may not waive a Justice’s disqualification under any of the enumerated circumstances in Section 455(b), but the parties may waive a Justice’s disqualification under Section 455(a) if the Justice makes a full disclosure on the record of the basis of disqualification.⁶⁴ In drafting its Code of Conduct, the Justices of the Supreme Court neglected to add any provisions relating to waivers for disqualification.⁶⁵ Section 455(e) already represents a deliberate choice by Congress to allow for only a narrow and transparent exception to standards which are meant to preserve an impartial judiciary and public confidence in it.⁶⁶ The Justices have simultaneously ignored the existing statutory framework for waiving disqualification while also misconstruing the “rule of necessity” and “duty to sit” as independent bases to ignore the law of disqualification. The implications and omissions in the Code of Conduct threaten to confuse disqualification procedures even in those rare cases where both parties are willing to consent to a waiver.

B. Due Process, Impartiality, and Disqualification

The Court is also bound to maintain both actual impartiality and the appearance of impartiality in deference to the litigants’ constitutional due process rights to a fair judiciary. While constitutional considerations of fairness are ever present in judicial decision making, due process concerns rarely figure into matters concerning the disqualification of federal judges and Justices because litigants rely on the standards contained within Section 455. Notwithstanding, the due process requirements contained within the Fifth and Fourteenth Amendments impose disqualification duties when a Justice’s interest in a case creates an appearance of partiality in violation of basic fairness.⁶⁷

In Caperton v. A.T. Massey Coal Company, the Supreme Court held that a West Virginia Supreme Court justice violated a plaintiff’s due process rights by refusing to recuse himself in a matter where the defendant had contributed $3 million to elect that same judge when it was already well known that the Supreme Court would be considering the matter.⁶⁸ Due process, the Court held, demands an objective standard of disqualification which bars a judge from hearing a case when there is a probability of actual bias, even if no actual bias can be proved.⁶⁹ The Caperton Court deemed the “extreme facts” of that case to be “critical” to its determination that the “probability of actual bias” rose to an unconstitutional level.⁷⁰ Given the relevant facts, which included “the temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case,” an “average judge” could not maintain the balance of neutrality the Court deemed necessary to afford the plaintiff due process.⁷¹

The Caperton Court recognized that the justice in that case was subject to a provision from the West Virginia Code of Judicial Conduct, which closely mirrored the language of Section 455.⁷² The Court also concluded that “codes of conduct serve to maintain the integrity of the judiciary” and reiterated its previous holding that due process concerns represent the minimum standards for judicial disqualification which may be supplemented by “more rigorous standards” imposed by state legislatures and Congress.⁷³

Chief Justice Roberts’s Caperton dissent has proven to be a harbinger of future hostility to ethics enforcement. There, he acknowledged the “need to maintain a fair, independent and impartial judiciary—and one that appears to be such[,]” but expressed dismay that the majority chose to recognize that due process requires recusal when there is a probability or appearance of bias.⁷⁴ Roberts’s dissent laid the potential groundwork for overturning the standard set by the majority.⁷⁵ Justice Scalia added his own dissent to voice his disdain for judicial recusal standards that prioritize the right to impartial adjudication over judicial expediency.⁷⁶ Roberts and his surviving fellow dissenters, e.g., Justices Alito and Thomas, have, however, neutered the holding of Caperton, not by overturning the ruling, but instead by simply ignoring it.

The Roberts Court’s Code of Conduct implies that the Justices have something akin to a right to circumvent the law of disqualification based on their misconstrued theory about the “duty to sit” and “rule of necessity.”⁷⁷ At the same time, the Court’s sole acknowledgment that the Due Process Clause affects any of their ethical duties amounts to a single general statement⁷⁸ in the commentary affirming that they already comply with the Due Process Clause.⁷⁹ The commentary does not address the way in which due process bears on a Justice’s duty to disqualify themselves to maintain the appearance of impartiality.

C. Textual Understanding of Resolution Procedures in the Absence of a Quorum

The statutory text of Title 28 of the United States Code, which covers the judiciary and judicial procedure, indicates that the Supreme Court is not entitled to any extra-textual exceptions to their recusal duties. Sections 1 and 2109 establish that a quorum must comprise six Justices and provide the procedures for the Supreme Court to follow where a quorum of Justices cannot be found.⁸⁰ Providing a procedure for resolution of a case when all Justices are not present demonstrates that Congress expected Supreme Court Justices to be absent in some cases. Congress would not create an unnecessary, surplus procedure. The pure text of the United States Code supports the position that Justices can and should recuse themselves according to statute.

The law establishing the quorum of the Supreme Court is the first section of the Judiciary Act of 1789,⁸¹ one of the foundational acts of the first United States Congress. This provision confirms that Congress expressly contemplated, prepared for, and passed legislation to address a situation where Supreme Court Justices were disqualified from hearing a particular case. Over the first century of the nation’s existence, the Court’s number fluctuated from as few as six to as many as ten before settling at nine in 1869.⁸² Section 2109, enacted in 1948, provides that where a case “cannot be heard and determined because of the absence of a quorum of qualified Justices,” the Chief Justice may order a case on direct appeal to be decided by the relevant federal court of appeals.⁸³ Alternatively, in any other case where the Supreme Court lacks a quorum of qualified Justices, the code states that:

[i]f a majority of the qualified Justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.⁸⁴

Section 2109 sets forth the methodology for resolving any case before the Court, no matter how many Justices have disqualified themselves, so long as another lower court is (or was) able to hear the matter. The provisions of Sections 1, 455, and 2109 of Title 28 of the United States Code are entirely compatible and establish a functional framework for judicial disqualification and deciding cases in the absence of a quorum. The Supreme Court should not ignore the law of disqualification based on an unsupported claim that the Justices’ duty to sit as a full court of nine Justices should take precedence. Nothing in the Constitution mandates that nine Justices or a full slate of Justices hear any case. Yet the Justices threaten to abandon their statutory duty to maintain the appearance of impartiality by implying that the Court can only function with nine Justices.

D. Historical Implementation of Title 28 U.S.C. § 2109

The Supreme Court must have a quorum to issue formal opinions, yet the Court regularly operates without a quorum in carrying out other duties.⁸⁵ Until 1948, the Court had no statutorily imposed procedure for disposing of cases that could not be heard for lacking a quorum.⁸⁶ Prior to the passage of Section 2109, the Justices would simply dismiss an appeal for want of a quorum without reference to any specific statute or precedent.⁸⁷ The 1948 law both codified existing practices and created new and necessary procedures to resolve cases where the Court did not have a quorum. The change in the law was partly prompted by a procedural hangup that emerged in a foundational antitrust case.

In United States v. Aluminum Company of America (“Alcoa”),⁸⁸ four Supreme Court Justices disqualified themselves from hearing a case brought to the Court on direct appeal, a procedure enabled by the antitrust laws.⁸⁹ Alcoa was a major antitrust case brought by the United States Department of Justice against the Aluminum Corporation of America regarding that company’s alleged monopoly. The disqualified Justices felt they could not fairly and impartially hear the matter even though recusal standards imposed by the statutory predecessor to Section 455 applied only to district court judges until 1948.⁹⁰

Without a quorum, the case could not be resolved under the available procedures, even though competent judges in the federal courts of appeal would not be disqualified if the case were in their jurisdiction.⁹¹ In response, Congress, in June of 1944, amended 15 U.S.C. § 29 of the Sherman Antitrust Act to create a procedure for a Supreme Court lacking a quorum to certify antitrust cases on direct appeal to the federal appellate courts.⁹² Alcoa is a rarity in that it is a case decided by a lower court that carries the same precedential value as a Supreme Court opinion because of the amended language in 15 U.S.C. § 29.

A few years after the final decision in Alcoa, Congress enacted the version of Section 2109 currently in force.⁹³ The new statute broadened the applicability of the procedure invented in the 1944 amendment, giving the Supreme Court the authority to certify any direct appeal from a district court to a federal court of appeals for final disposition.⁹⁴ Congress also included new language to clearly state that (1) if the court lacks a quorum in any case other than one brought on direct appeal from a district court and (2) a majority of the qualified Justices are of the opinion that the case cannot be determined by the next ensuing term, the lower court judgment must be affirmed as if decided by an equally divided Supreme Court.⁹⁵

The Justices have historically relied on Section 2109 to resolve cases that could not be heard by the Court. In 1950, the Court invoked Section 2109 to affirm the judgment of the Sixth Circuit when four of the Justices disqualified themselves in Prichard v. United States.⁹⁶ The Burger Court similarly invoked Section 2109 in Arizona v. Ash Grove Cement Company⁹⁷ to affirm the Ninth Circuit’s decision after previously deferring consideration of the writ of certiorari. The Roberts Court has repeatedly invoked Section 2109 to affirm the judgments of lower courts in cases where the Court lacked a quorum.⁹⁸ Thus the Roberts Court has a clear understanding of the available procedures that can be used to resolve a case when multiple Justices have disqualified themselves.

Chief Justice Roberts, in his published materials concerning judicial ethics, and the Court in its Code of Conduct, make very little mention of Section 2109. Where the Court in its commentary to the Code does discuss the application of the provision, it seems to portray it as a potential obstacle to creating uniform national rules.⁹⁹ These fears are likely exaggerated as the Court may also have opportunities to issue decisions on the merits of cases that they were previously unable to hear owing to a lack of quorum, as happened in United States v. Hatter¹⁰⁰ which had previously been affirmed using Section 2109 in United States v. Hatter.¹⁰¹ Otherwise, the Court’s commentary seems to undermine that statutory framework for resolving quorum issues by making claims that the law of disqualification should not apply to Supreme Court Justices in the same manner as other federal judges who serve below.¹⁰²

E. Justice Rehnquist and Modern Judicial Disqualification

During the tenure of Justice William H. Rehnquist, court observers also questioned the Supreme Court’s approach to disqualification.¹⁰³ In 1972, in his first year as an Associate Justice, Rehnquist refused to disqualify himself in the case of Laird v. Tatum,¹⁰⁴ where some observers accused the Justice of following the technical letter of law but breaching his broader ethical duties.¹⁰⁵ At issue was the fact that Justice Rehnquist, in his previous role as a Justice Department official, had given Senate testimony which expressed an opinion on the exact issue before the Court in Laird and conveyed information about the location of evidence at issue in the case while it was pending before the U.S. Court of Appeals.¹⁰⁶ Although he later denied having any knowledge of its contents, Justice Rehnquist, while serving at DOJ, authorized and made arrangements for that evidence to be transmitted to the Senate.¹⁰⁷ In a comment published in the Columbia Law Review in 1973, the authors wrote,

Justice Rehnquist did not violate the specific provisions of section 455, the only statutory standard of recusal to which he was bound. His participation was not, however, consistent with the goal of an impartial judiciary . . . although his judgment might have been impartial, his participation in Laird lacked the appearance of impartiality necessary to maintain public confidence in the Supreme Court.”¹⁰⁸

Two years after the court heard Laird, the amendment to Section 455, modifying the statute governing judicial disqualification, became law.¹⁰⁹ The congressional record reflects that the drafters likely had Rehnquist in mind when they made changes to Section 455(b)(3), which deals with previous government employment.¹¹⁰ The record also reflects that the drafters were careful to respect Justice Rehnquist’s discretion and understanding of the law. In a statement entered into his testimony before the Senate Judiciary Committee supporting the 1974 amendment and reflecting on Rehnquist’s non-recusal in Laird, John Frank stated, “[Justice Rehnquist] generously quoted extensively from certain writings of my own in coming to his conclusion, and I believe him to be wholly correct in the conclusions under the law as it has existed.”¹¹¹

In 1974, Justice Rehnquist did recuse himself from United States v. Nixon¹¹² because of his prior close relationship with Attorney General John Mitchell.¹¹³ Rehnquist went on to recuse himself in two additional cases in which Mitchell appeared as a party: Kissinger v. Halperin¹¹⁴ and Mitchell v. Forsyth.¹¹⁵ Rehnquist wrote privately to the other Justices that, “I have been a bystander in [Kissinger v. Halperin] for the reason that [Justice] Lewis [F. Powell Jr.] has stated in his memorandum of May 26th—the fact that John Mitchell is a party individually, and not simply as an attorney for a client.”¹¹⁶ It is an open question whether Rehnquist felt his personal relationship with Mitchell warranted his disqualification under the general appearance of impartiality standard of Section 455(a) or the more specific personal bias or prejudice standard of Section 455(b)(1). Rehnquist, though he generally disfavored recusal, acknowledged his duty to appear impartial, and disqualified himself from hearing a trio of important cases, including one that helped shape presidential immunity.¹¹⁷

In 1980, the same year that John Roberts clerked for then Justice Rehnquist,¹¹⁸ the Supreme Court decided United States v. Will.¹¹⁹ In Will, the Court held that Section 455 was intended to disqualify judges and Justices individually and could not be interpreted to disqualify all judges from cases that involved the interest of all otherwise qualified judges.¹²⁰ As discussed in greater detail below, the Supreme Court in that case properly recognized the circumstance in which the law of disqualification gives way to the “rule of necessity,” in accordance with both the common law and the intention behind Section 455.

Chief Justice Rehnquist and six associate Justices issued a statement in 1993 on their policy of disqualification from cases before the Court as it relates to relatives who are practicing attorneys.¹²¹ The 1993 statement does not, as the commentary to the 2023 Code of Conduct suggests, “recognize . . . that the time-honored ‘rule of necessity’ may override the rule of disqualification.”¹²² Of course, this assertion is a misnomer since there is no formal “rule of necessity” and the disqualification requirement is a law, passed by bipartisan majorities in Congress and enacted by the president, rather than a mere rule, norm, or practice.¹²³ The 1993 statement in no way exempts the Justices from the requirements of Section 455. Rather, the 1993 statement serves to explain the proper interpretation of Section 455(b)(5) in situations where Justices must disqualify themselves due to their relative’s or law firm’s involvement in a case before the court. The 1993 statement does state that “needless recusal” risks exerting a “distorting effect upon the certiorari process.”¹²⁴ However, the current Court erroneously and recklessly ignores the word “needless” from the 1993 statement.¹²⁵ Section 455 is a federal law that mandates disqualification under given criteria; needless recusals would necessarily be those not mandated by law. Any fears of a distorting effect on the certiorari process should have no bearing on the law of disqualification. The current Court takes a general statement from the non-binding 1993 statement and uses it as an excuse to distort the application of the federal law of disqualification to its own ends.¹²⁶ This is a glaring incongruity and a self-serving misapplication of the law.

In the Rehnquist Court’s denial of certiorari for Microsoft Corporation v. United States,¹²⁷ Chief Justice Rehnquist issued a statement on why he refused to disqualify himself from antitrust cases brought against Microsoft by the federal government and the New York attorney general, even despite his son’s representation of Microsoft in other private antitrust litigation matters. Chief Justice Rehnquist took care to explain why the text of Section 455 did not mandate disqualification under those circumstances.¹²⁸ Finally, he noted the negative impact that unnecessary recusal could have on the Court, though this point was not strictly part of his actual legal rationale for refusing to disqualify himself.¹²⁹ While Chief Justice Rehnquist claimed his refusal to disqualify was largely in line with the policy laid out in the 1993 statement, Justice John Paul Stevens reportedly felt that Rehnquist was violating his ethical duty.¹³⁰ More importantly, this difference of opinion reflects the inconsistency that can result from allowing individual Justices to make their own unreviewable recusal determinations, resulting in an inconsistent application of the law of disqualification and a lack of transparency regarding recusals.

In total, Chief Justice Rehnquist began his Supreme Court tenure by warning of the dangers of “‘bending over backwards’ in order to deem oneself disqualified,”¹³¹ and in his time on the Court he consistently read the law of disqualification to be both binding on the Justices and yet mostly inapplicable to his particular conflicts. He also seemed to understand that any disqualification determination must be consistent with the law of disqualification as codified by Section 455. As explained in the next Section, the end of recognizing Section 455 has coincided with the end of the Rehnquist Court.

F. The Roberts Court

The current Justices have recused themselves from various cases, and on occasion have even invoked the procedures contained within Section 2109 to affirm the cases according to the judgments of lower courts. However, members of the Roberts Court have, by implication and omission, cast doubt on the applicability of the law of disqualification and procedures for resolving cases in the absence of a quorum.

For example, Justice Alito, after participating in Republic of Argentina v. NML Capital Limited,¹³² was later faced with a subsequent published report on his apparent ethical lapse regarding his duty to maintain impartiality or the appearance of it.¹³³ A 2023 ProPublica report drew attention to the fact that Justice Alito had traveled to a 2008 luxury fishing retreat with Paul Singer, a hedge fund manager with an interest in the NML Capital case, on Singer’s private jet.¹³⁴ In response to the reporting, Justice Alito published an opinion piece which stated no “unbiased and reasonable person who is aware of all relevant facts” would doubt his ability to fairly discharge his duties.¹³⁵ Justice Alito, when addressing the relevant recusal standard in that opinion article, cited the Court’s 2023 Statement on Ethics Principles and Practices rather than the binding statutory text of Section 455.¹³⁶ In concluding his remarks, the Justice implied that the free private jet flight was not a gift that would give an appearance of impartiality because the seat he took would have otherwise gone unoccupied.¹³⁷ However, the Justice cites no evidence that a reasonable person would not see any probability or appearance of partiality on the part of a government employee who accepts luxury travel on a private jet.

In 2024, Justice Alito refused to disqualify himself after Senators Durbin and Whitehouse requested he recuse from hearing cases related to the 2020 presidential election based on his wife’s choice to fly the “appeal to heaven flag” as well as an inverted American flag.¹³⁸ In response to the senators’ request, Justice Alito published a letter explaining his refusal to disqualify himself in which he cited the Code of Conduct, and not the federal recusal statute, as the relevant standard for disqualification.¹³⁹ The provision he cites is broadly in line with the language from Section 455, but the Justices’ Code contains extraneous clauses that risk confusing the application of the law of disqualification.¹⁴⁰ Justice Alito concluded his letter by stating that a “reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that this event does not meet the applicable standard for recusal.”¹⁴¹ The law of disqualification applies based on an objective, reasonable person standard and does not include language about “political or ideological considerations.”¹⁴² Alito’s excessive qualifiers to the standard, as well as his choice to cite the Code of Conduct instead of Section 455, demonstrate a disregard for the law of disqualification.

Four days after the New York Times reported that Alito’s wife had flown flags over their home like those that insurrectionists had carried during the January 6th attack on the Capitol, the Chief Justice reportedly reassigned responsibility for drafting the opinion in Fischer v. United States.¹⁴³ Originally assigned to Alito, Fischer concerns criminal charges against January 6th insurrectionists.¹⁴⁴ None of the Justices have released any public statement explaining the reported reassignment, but if true, the reassignment and its timing reinforce concerns about actual bias or at least the appearance of partiality on the part of Justice Alito.¹⁴⁵

As noted above, Justice Thomas displayed a similar disregard for the law of disqualification when he failed to recuse from cases related to the 2020 presidential election, save for his non-participation in Eastman v. Thompson,¹⁴⁶ which the Court declined to hear. Thomas participated in the election interference cases heard before the Court notwithstanding his wife’s active involvement in the “Stop the Steal” efforts following the 2020 election.¹⁴⁷ Her communications with the then-Chief of Staff were potentially at issue in Trump v. Thompson, in which the Court rejected the former President’s request to block the National Archives from releasing White House records to a congressional committee as part of its investigation.¹⁴⁸ Not only did Justice Thomas fail to recuse himself from that case, but he was the only Justice to express support for granting the application to stay the lower court’s decision allowing the release of the documents.¹⁴⁹

On December 5, 2024, Justice Neil Gorsuch recused himself in the case of Seven County Infrastructure Coalition v. Eagle County,¹⁵⁰ set to be heard before the Court five days later.¹⁵¹ A letter issued to the parties by the Clerk of the Supreme Court stated Justice Gorsuch made the decision in accordance with the Code of Conduct and offered no further analysis or justification.¹⁵² Justice Gorsuch’s recusal followed a letter issued a few weeks earlier by Representative Hank Johnson, and signed by twelve other members of the House, which urged Justice Gorsuch to recuse himself from the case.¹⁵³ The lawmakers, who chose to cite the Code of Conduct as the applicable recusal standard, reasoned that Gorsuch could not appear impartial based on his past employment with a company that had financial interests which would be directly impacted by the Eagle County case.¹⁵⁴ The letter drew particular attention to Philip F. Anschutz, the owner of Justice Gorsuch’s former employer, who filed an amicus brief on behalf of a party in the case and also had a history of giving lavish personal gifts to the Justice.¹⁵⁵ The members of the House reached the conclusion that Justice Gorsuch should disqualify himself based on his inability to appear impartial.¹⁵⁶ However, it is concerning that the lawmakers chose to cite the Code of Conduct rather than the binding and more stringent Section 455.¹⁵⁷ Whether that was the actual basis for Justice Gorsuch’s recusal is unclear since he failed to offer any substantive explanation or legal analysis. His refusal to do so only confirms the dangerous, ad hoc, and conflicted process for recusals currently in place at the highest court. This lack of consistency and transparency is untenable for the Court, as well as the litigants and the public that rely on it.

In Loper Bright Enterprises v. Raimondo,¹⁵⁸ the Court wrote that Chevron U.S.A., Inc. v. NRDC¹⁵⁹ was decided by a “bare quorum” before going on to overturn the foundational holding of that case. In Chevron, Justices Marshall and Rehnquist were absent for health reasons, and the court granted certiorari to the case on a 4 to 3 vote.¹⁶⁰ After hearing oral arguments, Justice O’Connor recused herself from the decision when she inherited a financial interest in one of the companies before the court.¹⁶¹ The Chevron Court continued on with a quorum of qualified Justices and issued an opinion that had the same precedential effect as any other final opinion. The statutes defining judicial procedure give equal weight to a decision whether it was made by six Justices or nine, yet the modern Supreme Court seems to take issue with that practice and application of this law.¹⁶²

The law of disqualification is meant to preserve the public’s confidence in an impartial judiciary, and the laws regarding administrative procedure are meant to ensure the function of the judiciary. The Roberts Court has diverged from the Court’s historic understanding of its duty to recuse and has cast doubt on the well-established law and procedure of disqualification. The remainder of this Article will closely analyze the Court’s proposition that the “duty to sit” and the “rule of necessity” may override the law of disqualification. The following sections will also demonstrate that the Roberts Court has minimized its statutory and ethical obligations regarding disqualification while inventing conflicting ethical obligations regarding settled administrative processes.

III. The Duty to Sit

The Supreme Court has misappropriated the common law doctrine of the “duty to sit” in an apparent attempt to displace the requirement that Justices disqualify themselves according to Section 455. The duty to disqualify oneself to eschew bias and maintain the appearance of impartiality is not affected by any judicial duty to sit.

A. The “Duty to Sit” in Modern Jurisprudence

The federal judiciary had long recognized that a Justice has a “duty to sit” only when not otherwise disqualified.¹⁶³ Following the 1974 amendment, Section 455 states that a Justice shall disqualify themself in any proceeding in which their impartiality might reasonably be questioned.¹⁶⁴ Therefore, if a judge or Justice’s impartiality might reasonably be questioned, the “duty to sit” does not apply. By contrast, in its non-binding Code of Conduct, the Supreme Court offers the “duty to sit” as a legal rationale for why the Justices may override the rule of disqualification.¹⁶⁵ The Court’s interpretation misconstrues the nature of the “duty to sit” in modern jurisprudence and undermines public confidence in this established legal regime.

Modern courts have sought to interpret the “duty to sit” faithfully in a post-Edwards world. When recognizing that Section 455 had eliminated the “duty to sit” as it existed, some federal judges have expressly cautioned against abusing Section 455 to avoid difficult or controversial cases.¹⁶⁶ Other federal courts have similarly cautioned that Section 455 must not be so broadly construed as to disqualify judges based on the “merest unsubstantiated suggestion of personal bias or prejudice.”¹⁶⁷ Under this new post-Edwards interpretation of the “duty to sit,” the reasonableness prong of the standard acts as a necessary counterweight to the strict duty to maintain the appearance of impartiality.¹⁶⁸

Other judges cite to Justice Rehnquist’s memo explaining his refusal to disqualify himself in Laird when considering disqualification motions even though the specific legal rationale in that memo was foreclosed by the 1974 amendment to Section 455. For example, Judge Tidwell, sitting for the United States Court of Claims in Choctaw Nation of Oklahoma v. United States,refused to recuse himself in a suit brought by a tribe when the tribe questioned his impartiality based solely on his employment nine years prior in the Office of the Solicitor at the Department of the Interior.¹⁶⁹ Drawing similarities between himself and Justice Rehnquist in Laird, Judge Tidwell held, “that plaintiffs’ discomfort with some illusory partiality attributed to me does not fall within the objective standard used to interpret § 455(a).”¹⁷⁰ It makes little sense to reference Rehnquist’s memorandum which predates the amended Section 455, and yet Judge Tidwell’s analysis is consistent with the law because it adopts Rehnquist’s own approach to judicial disqualification following the 1974 amendment.

As stated above, Rehnquist was careful to align his recusal decisions with the text of Section 455 and did not state or imply that he was exempted from the statute. Likewise, the lower courts have occasionally merged the concept of the “duty to sit” with the reasonableness prong of Section 455 in such a way that the statute retains its meaning as conceived by Congress.¹⁷¹ Some lower court decisions on disqualification have spoken about a judge’s obligation not to abrogate their judicial duties once they have determined that no reasonable person would question their impartiality.¹⁷²

Any considerations focusing on an affirmative judicial obligation to hear a case necessarily follow a disqualification determination and therefore have no bearing on the law of disqualification. While it may be confusing to invoke the “duty to sit” when discussing the obligations imposed by Section 455, the federal judiciary continues to implement the law of disqualification according to the terms of the 1974 amendment. The “duty to sit,” as understood by the federal judiciary, cannot be an independent justification for abandoning the standard set out in Section 455.

In amending Section 455, Congress intended to remove the “duty to sit” as it was previously interpreted because they saw it as an obstacle to the impartial administration of justice.¹⁷³ Modern federal courts now invoke the “duty to sit” to caution judges against avoiding difficult or contentious cases when no reasonable person would question their impartiality.¹⁷⁴ The analysis of whether to disqualify for purposes of Section 455 must then be conducted in advance of and separate from the modern interpretation of the “duty to sit.”

From the above cases and statutes, we glean a set of determinations under the law of disqualification for Justices to navigate. Each determination is meant to maintain public confidence in the integrity of the judiciary. First, the Justice must determine if they can appear impartial to a reasonable person in the matter before the Court. If not, the Justice must disqualify themselves, or the Justice may disclose the reason for disqualification and subsequently seek a waiver from all parties.¹⁷⁵ The appearance of impartiality standard in this initial determination is an objective one and does not hinge on whether the Justice feels that they can actually be impartial. If the Justice determines they can appear impartial but finds that one of the enumerated circumstances in Section 455(b) applies, then the Justice is disqualified and cannot obtain a waiver. After these assessments, if the Court lacks a quorum because multiple Justices are disqualified from hearing a case, and no lower court judges are or were available to consider the matter under the procedures contained within Section 2109, the Court may be able to invoke “the rule of necessity” to resolve the matter as discussed later in this Article.

Judges and Justices already have considerable discretion in applying the law of disqualification under the standards as they exist.¹⁷⁶ While the Justices have at times pushed the bounds of what qualifies as disqualifying under the law of disqualification, they have never gone so far as to state that the law does not apply to them.

B. Questions Regarding the Roberts Court’s Interpretation

Unfortunately, the Roberts Court’s Code of Conduct and associated statements threaten to undermine the proper interpretation of the “duty to sit” and the law of disqualification. The Court distorts the law of disqualification when it conflates recusal obligations with a “duty to sit” as nine, writing:

A recusal consideration uniquely present for Justices is the impairment of a full court in the event that one or more members withdraws from a case. Lower courts can freely substitute one district or circuit judge for another. The Supreme Court consists of nine Members who always sit together. Thus, Justices have a duty to sit that precludes withdrawal from a case as a matter of convenience or simply to avoid controversy.¹⁷⁷

The Court, in that statement predating the Code by several months, puts too much focus on the Supreme Court’s small size and unique place in the constitutional order, while ignoring the procedures available to it when the Court cannot sit with nine members. The Court also seems to have invented a requirement that the Court always sit en banc where no such duty exists.

Also, considerations of disqualification and withdrawal strictly come before any consideration relating to an obligation to hear a case. The Supreme Court Code of Conduct appears to acknowledge as much, stating, “A Justice is presumed impartial and has an obligation to sit unless disqualified.”¹⁷⁸ Yet, the Court threatens to cause confusion regarding the law of disqualification with its commentary to Canon 3B of the Code of Conduct.¹⁷⁹ There the Court again states that it “consists of nine members who sit together” and goes on to repeat portions of the 2023 statement¹⁸⁰ to insinuate that the loss of one Justice from a case warrants a different application of the law of disqualification.¹⁸¹ The commentary, however, contains no direct reference to the processes for resolving cases absent a quorum as outlined in Sections 1 and 2109.

The Court also references Justice Scalia’s non-binding memorandum in Cheney v. United States District Court for District of Columbia,¹⁸² to imply that a Justice should refrain from disqualifying themself from hearing a case because to do so is effectively the same as casting a vote against the petitioner.¹⁸³ As previously stated, Congress has demonstrated its authority to amend the laws to address quorum issues as when it amended 15 U.S.C. § 29 and 28 U.S.C. § 2109 and can therefore adjust judicial procedures as needed. The Court similarly references Justice Rehnquist’s statement in Microsoft Corporation v. United States,¹⁸⁴ to emphasize the risk of disqualification preventing the Court from providing uniform national rules.¹⁸⁵ As demonstrated above, Rehnquist made disqualification determinations based on Section 455.

In the same commentary regarding disqualification, the Court discusses the provisions of the Code of Conduct for United States Judges that serve as a partial model for the Supreme Court Code of Conduct, but does not similarly address Section 455.¹⁸⁶ The Court also emphasizes the idea that “much can be lost when even one Justice does not participate in a particular case.”¹⁸⁷ The Court’s own estimation of the significance of nine Justices sitting together cannot substitute for the actual statutory framework concerning disqualification, judicial procedure, and the mandate for impartiality.

The Code’s Canon directly addressing the law of disqualification threatens to distort the application of that law by introducing new requirements to the “reasonable person” standard. The Code reads in pertinent part:

A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.¹⁸⁸

By inserting “unbiased” into the equation, the Court not only deviates from the text of Section 455, as well as the Code of Conduct for lower court federal judges, but it seemingly lends cover to Justices seeking to circumvent their legal duties by shifting the burden of the appearance of impartiality. This language is inconsistent with Section 455 and a not-so-subtle jab at critics, suggesting that those who raise concerns about bias and conflicts on the Supreme Court are in fact biased themselves. Crucially, the Code’s Canon also substitutes “should” in place of Section 455’s “shall,” inaccurately portraying the duty to disqualify as discretionary rather than mandatory. The Court has no justification for neglecting to directly reference or quote from Section 455 in the commentary, especially considering that it is well-established law and the Justices have regularly discussed its application in their disqualification memoranda.

None of the Justices stated that they had a duty to sit as nine when the Court operated with eight Justices for more than a year after Justice Scalia died in 2016, and Senate Majority Leader Mitch McConnell refused to meet with or hold a confirmation hearing for President Barack Obama’s nominee to fill the vacancy.¹⁸⁹ When asked how the Court would go on without nine members in the face of McConnell’s recalcitrance, Justice Alito responded that “[w]e will deal with it” and went on to say, “[t]here’s nothing in the Constitution that specifies the size of the Supreme Court.”¹⁹⁰ On this self-serving point, Justice Alito is correct—the Constitution does not state or otherwise lend any support to the idea that the Justices have a duty to sit as nine which may override the law of disqualification. By contrast, the Constitution does explicitly guarantee the right to due process, which includes the right to an impartial tribunal, and any language in the Code of Conduct relating to disqualification cannot abridge that right.

In total, the law of disqualification hinges on a singular determination as to whether a Justice can objectively appear impartial to a reasonable person. The Supreme Court, as the final arbiter of the constitutionality of our nation’s laws, should not issue statements that cast doubt on the established applicability of the law of disqualification. Any Justice must disqualify themself when a person would reasonably question the Justice’s appearance of impartiality, and no equivocation or obfuscation in statements from the Court can alter that duty.

Federal courts recognize a post-Edwards “duty to sit” which is entirely compatible with the law of disqualification established by Section 455. The modern “duty to sit” exists in harmony with that statute and only attaches to judges or Justices after they have determined that they can reasonably appear impartial. The Roberts Court, in its Code of Conduct, however, seemingly ignores its obligations under Section 455 to invoke a duty to sit en banc inconsistent with the purpose of the 1974 amendment, Sections 1 and 2109, and its own historical practice. If the Supreme Court insists on invoking the “duty to sit,” it must do so in accordance with its statutory obligations.

IV. The “Rule of Necessity”

The “rule of necessity” is a judicially created doctrine that cannot supersede the law of disqualification, but instead applies only in those cases that could not be adjudicated under a strict application of Section 455.¹⁹¹ In the 2023 Code of Conduct, the Supreme Court Justices invoke the “rule of necessity” to justify their position that it may sometimes override the law of disqualification.¹⁹² The “rule of necessity” is a longstanding judicial doctrine that stands for the proposition “that judges should not decline to sit where no substitute was readily available.”¹⁹³ The “rule of necessity” arose under English common law as a kind of common sense doctrine. “If an action is sued in the bench against all the Judges there, then by necessity they shall be their own Judges.”¹⁹⁴ Yet, in its commentary to the Code of Conduct, the Court seems to imply that there is a necessity for the Court to sit with nine Justices.¹⁹⁵ However, the historical application of the “rule of necessity” in federal courts has been limited to those cases that, by their extreme circumstances, make resolution impossible under standard judicial disqualification and substitution procedures. Thus, the “rule of necessity” has been consistently applied in state and federal courts of the United States and does not conflict with the law of disqualification.¹⁹⁶

A. United States v. Will

The Supreme Court stated in Canon 3B(3) of its Code of Conduct, “the rule of necessity may override the rule of disqualification.”¹⁹⁷ In its commentary, the Court wrote that the non-binding Code’s recusal provisions “recognize the duty to sit and that the time-honored rule of necessity may override the rule of disqualification.”¹⁹⁸ Although the Court does not offer any analysis concerning the actual application of the “rule of necessity,” it cited United States v. Will¹⁹⁹ for the proposition that Congress had no intention of altering the “rule of necessity” when it amended Section 455. In doing so, the Court appears to have incorrectly assumed that the “rule of necessity” directly applies to the law of disqualification. Rather, the “rule of necessity” provides a crucial backstop where the law of disqualification ceases to support the purpose of the judiciary.

In Will, federal district court judges challenged Congress’s authority to stop or reduce scheduled cost-of-living pay increases to all Article III judges.²⁰⁰ The Court held that the “rule of necessity” allowed Article III judges to preside over a case that affected the interest of all Article III judges.²⁰¹ The Court specifically stated that when a judge “is disqualified from a particular case by reason of § 455, the disqualified judge simply steps aside and allows the normal administrative processes of the court to assign the case to another judge not disqualified.”²⁰² The Will Court saw no conflict between the normal application of Section 455 and the “rule of necessity.” To demonstrate the historical use of the “rule of necessity,” the Will Court listed several cases, including Evans v. Gore.²⁰³

Evans concerned the proper tax status of judicial income and (though the substantive holdings have largely been overturned) the circumstances of the matter closely resembled those present in Will, both concerning a financial interest applicable to all federal judges.²⁰⁴ The Court decided to hear the case, even though the decision would affect the financial interest of all federal judges.²⁰⁵ After acknowledging the individual interests of the Justices, the Court determined, “[i]n this situation, the only course open to us is to consider and decide the cause–a conclusion supported by precedents reaching back many years.”²⁰⁶ Without naming the “rule of necessity,” the Evans Court properly recognized that the standards of disqualification should only be suspended when no other course of action could provide the litigant with “their right to a forum.”²⁰⁷

The Will Court made clear that Congress did not alter the time-honored “rule of necessity” when it amended Section 455 in 1974.²⁰⁸ Indeed, there was no direct conflict between the “rule of necessity” and the law of disqualification.²⁰⁹ The Court explicitly stated that Sections 1 and 2109 of Title 28 outline the Court’s procedures to proceed in the absence of a full bench or even a quorum, and that those procedures should normally be deployed as appropriate.²¹⁰ The Court only invoked the “rule of necessity” because following Section 455 under the instant circumstances would not have left a single judge qualified to hear the case.²¹¹

B. The Unchanged “Rule of Necessity”

Other courts have plainly stated that the law of disqualification can only be suspended, out of necessity, in the event that no procedure exists to allow the matter to move forward.²¹² The “rule of necessity” is therefore reserved for those situations in which the strict application of the law of disqualification would make adjudication impossible.

Members of the Senate did not mention the “rule of necessity” in their committee discussions that preceded the 1974 amendment.²¹³ Neither did members of the House make any reference to “the rule of necessity” in their report on the 1974 bill.²¹⁴ The lawmakers, as previously discussed, did intend to eliminate the “duty to sit” as it was interpreted under Edwards. Congress also meant to ensure public confidence in the judiciary, and broadly intended to bring judges’ and Justices’ ethical and statutory obligations into alignment.²¹⁵ Congress did not believe that the “rule of necessity” contravened or abrogated the law of disqualification, or else they would have necessarily mentioned it when they amended Section 455.

Both Congress and the Judiciary understood in 1974 that the “rule of necessity” ought to be invoked only in those cases that could not be resolved with lawful procedures for disqualification and reassignment. Judges and Justices invoke the “rule of necessity” as a procedure of last resort; it does not generally bear on everyday judicial consideration in the way that the law of disqualification does.

C. Misleading ABA Quotation

The Court also cites the commentary to the American Bar Association (“ABA”) Model Code of Judicial Ethics for the proposition that the “rule of necessity” may override the law of disqualification.²¹⁶ The ABA’s Model Code, though often adopted in whole or in part by state and federal jurisdictions, does not carry the weight of law. The commentary lacks any binding legal authority and should presumably carry little persuasive value. The proposed language of the actual Canon on disqualification issued by the ABA in its model code is entirely consistent with Section 455: “[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality[] might reasonably be questioned.”²¹⁷ The ABA’s non-binding and advisory comment to that Canon, cited by the Court, reads in full:

The rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable.²¹⁸

The comment clearly evinces an understanding of the “rule of necessity” in line with its historic application, not one that allows for a broad override of the law of disqualification. The full text of the comment acknowledges that the “rule of necessity” ought to apply on an exceptional or emergency basis. Otherwise, regular administrative procedures should be relied upon instead.

Under these circumstances, the Court’s reliance on the word “override” seems misleading given that the Court primarily focuses its commentary in the Code on the importance of the Court sitting as a nine-member body.²¹⁹ In relocating language directly from the ABA commentary to the Code of Conduct, the Court ignores the purpose of the 1974 amendment, the overwhelming weight of case law and even relevant language from the ABA commentary itself.

D. Practical Application of the “Rule of Necessity”

Confirming the practical application of the “rule of necessity” in recent years, federal appellate courts have held that when all members of a federal circuit are named in a lawsuit, the “rule of necessity” properly allows those Justices to hear the case. In Ignacio v. Judges of United States Court of Appeals for Ninth Circuit, the Ninth Circuit invoked the “rule of necessity” to hear a case brought by a man ruled a “vexatious litigant” in state court, and affirmed the dismissal of the man’s claim which named all members of the circuit.²²⁰ The Fifth Circuit similarly chose to rule against an appellant who had named the court as a defendant, apparently due to the court’s involvement in a prior proceeding involving the appellants.²²¹

Article III judges recognize that the “rule of necessity” is only appropriate in cases where the normal administrative process of the court cannot apply.²²² The “rule of necessity” should not be considered concurrently with the law of disqualification but should be invoked in cases where the law of disqualification has ceased to serve the proper administration of justice.

The Supreme Court, to properly invoke the “rule of necessity,” would have to first exhaust the administrative procedures contained within Section 2109. The likeliest scenario in which it would be proper for the Supreme Court to invoke the “rule of necessity” are those that closely resemble the cases in which it previously invoked that doctrine.²²³ If the Supreme Court were asked to review a legal matter affecting the interests of all Article III judges and Justices, it would almost certainly be appropriate to invoke the “rule of necessity.” The “rule of necessity” ensures that judges may hear a case when any judge would otherwise be unable to hear it. The “rule of necessity” does not ensure that all Justices may hear all cases because they have decided that it is necessary that the Court always sit as nine.

V. Need for Additional Reforms

Following years of ethical scandal, the Court needs a Code that follows the law of disqualification and accurately interprets existing ethics doctrines. As explained above, neither the “rule of necessity” nor the “duty to sit” alter the law of disqualification. Indeed, when properly interpreted these concepts become relevant only after a Justice determines whether federal law requires the Justice’s recusal: if a Justice need not recuse, then, consistent with the duty to sit, the Justice should not refuse to hear the case merely because it is difficult or controversial. And if a Justice’s recusal is required under the federal disqualification statute, then the Justice may not consider the case except in the rare circumstance that the Justice’s disqualification would deny a litigant “their right to a forum.”²²⁴

In this way, the recusal statute, the “duty to sit,” and the “rule of necessity,” taken together, serve the goals of the judicial system by guaranteeing the availability of a forum that both is and appears to be impartial. And the statutory structure of the Court largely reflects this framework by setting forth clear procedures for the Court’s operation when a Justice or multiple Justices cannot consider a case.²²⁵

But federal law does not explicitly address whether a judge or Justice has a duty to sit on assigned cases, nor does it contemplate what procedure applies when every Article III judge or Justice would be disqualified from hearing a case under federal law. While these questions do not and should not justify Justices hearing cases where they have a clear conflict, perhaps it is these legislative gaps that have emboldened the Court to develop and apply its own conception of these rules.

In an abundance of caution, to address this concern, Congress should consider amending Section 2109 to prevent any unnecessary confusion or misappropriation of the “rule of necessity” by the Court. The new subsection should be added to specify that in cases where the Court cannot resolve the matter according to the procedure laid out under the existing Section 2109 framework (i.e., because no Article III judges would be deemed “qualified”), then and only then may the Court invoke the “rule of necessity” to permit the otherwise disqualified Justices to hear a case. Congress should also amend Section 1 to specifically note that Section 2109 provides the exclusive procedures for the Court to follow when it lacks a quorum.

Additionally, Congress should consider codifying the meaning of these rules in the federal recusal statute to remove any possible ambiguity regarding the intersection between these judicially developed concepts and the law of disqualification.²²⁶ As described in Part III.A, the federal recusal statute requires any judge or Justice to disqualify themself either in specified circumstances or if their “impartiality might reasonably be questioned.”²²⁷ But the statute lays out certain exceptions that permit an otherwise disqualified judge or Justice to consider a matter. First, the parties may waive certain conflicts.²²⁸ Second, if a conflict involves a financial interest, the judge or Justice need not disqualify themself if they have devoted substantial time to the relevant matter and the financial interest is divested.²²⁹

The statute does not mention the “duty to sit” or the “rule of necessity,” but Congress can amend this law to further clarify what effect, if any, these concepts have on the requirement that a judge or Justice disqualify themself in a proceeding. To begin, Congress could clarify that the “duty to sit” is not a factor in a judge or Justice’s initial disqualification analysis and does not constitute an exception to the recusal statute. To make clear that this merely constitutes a separate inquiry after a judge or Justice determines whether they must disqualify themself in a proceeding, Congress could also specify that a judge or Justice who is disqualified under the statute may not participate in a proceeding unless a separate exception applies. And consistent with the “duty to sit,” Congress could add that a judge or Justice who is not disqualified under the federal recusal statute or the applicable code of conduct should hear and decide matters assigned.²³⁰

Second, Congress could remove any possible excuse about the “rule of necessity” by adding it to the list of exceptions in the recusal statute and, in describing the exception, narrow its scope. That is, the law could specify that a judge or Justice who is otherwise disqualified under the recusal statute—and to whom no other exception applies—may consider a matter only if the chief judge of the relevant district court, or chief judge of the relevant circuit court determines that no other judge or Justice, or panel of judge or Justices, as the case may be, could consider the claims.²³¹ For cases before the Supreme Court, the legislation could specifically require that the Chief Justice consider in their determination the availability of the procedures Congress has outlined for when the Court lacks a quorum.²³² These changes, though minor, would go a long way toward ensuring that the Court does not rely on the “duty to sit” or the “rule of necessity” as justification for failing to disqualify from a proceeding under federal law.

Congress can also establish support for these amendments by developing a legislative record that explains both why they are necessary and Congress’s proper role in codifying these concepts. In any report or hearing accompanying any such amendments, the appropriate congressional committees can explore the language of the Supreme Court Code of Conduct, explain that the amendments reflect the proper interpretation of the “duty to sit” and the “rule of necessity,” and dispel the Justices’ interpretation that the Court properly functions only when its “nine Members . . . sit together.”²³³

Moreover, although these amendments would make only modest changes to current law, the legislative history should detail Congress’s longstanding constitutional authority to regulate these administrative and structural aspects of the Supreme Court’s functions.²³⁴ Through testimony and report language, Congress can highlight the many ways in which it can, and historically has, regulated the Court’s operations, including through laws governing the disqualification of judges,²³⁵ the Court’s size, and quorum requirements.²³⁶

Conclusion

The United States Supreme Court is the most powerful tribunal in America with sweeping power over our laws and lives yet has the weakest ethical regime in the entire federal government. It also has a recent history filled with staggering and repeated ethics scandals that call out for reform. As an institution that lacks enforcement or budget authority and derives its power primarily from the will of the public, these ethical failures are especially damaging to the rule of law. Unfortunately, the Court has taken the untenable position that an ill-defined “duty to sit” or “rule of necessity” are more important than the Constitution’s mandate for due process, the public’s faith in impartial Justice, and the federal statute that requires disqualification when a reasonable person would doubt the Justice’s impartiality. The status quo cannot persist if the Court is to maintain the credibility necessary to preserve the rule of law in America. Compliance and reform are possible and desperately needed. If the Supreme Court refuses to take sufficient action, then it is incumbent on the American public and their representatives in Congress to do so, just as when the disqualification statute was amended following Watergate. We would all do well to heed the lessons of that history to strengthen our courts and our democracy.

* Executive Director and Chief Counsel, Citizens for Responsibility and Ethics in Washington (CREW).
** J.D. Candidate, 2025, The University of New Mexico School of Law.
*** Ethics and Anticorruption Chief Counsel and Director, State Democracy Defenders Fund; Former Chief Ethics Counsel, Citizens for Responsibility and Ethics in Washington (CREW). The authors wish to thank Professor James Sample, Christie Wentworth, Meghan Faulkner, Grace Honig, and Freddy Wong.

References:

1
See infra notes 16–17, 32–33.
2
See infra notes 17–19.
3
See infra notes 21, 136.
4
See Act of Dec. 5, 1974, Pub. L. No. 93-512, 88 Stat. 1609 (codified as amended at 28 U.S.C. § 455).
5
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 859 (1988) (“Scienter is not an element of a violation of § 455(a). The judge’s lack of knowledge of a disqualifying circumstance may bear on the question of remedy, but it does not eliminate the risk that ‘his impartiality might reasonably be questioned’ by other persons.”) (quoting 28 U.S.C. § 455); Liteky v. United States, 510 U.S. 540, 551 (1994) (holding extrajudicial conduct is commonly the basis for disqualification of judges under Section 455, but judicial rulings and official conduct can in rare cases be the basis for a claim of impartiality if they evince an inability to render fair judgment).
6
Code of Conduct for Justices of the Sup. Ct. of the U.S. (2023) [hereinafter Code of Conduct] (emphasis added), https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf [https://perma.cc/H5MV-6YZ2].
7
Id. at 10–11.
8
See Pub. L. No. 93-512 (1974).
9
28 U.S.C. § 2109.
10
Sup. Ct. R. 10.
11
See 28 U.S.C. § 455; Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 872 (2009); see also Model Code of Jud. Conduct r. 2.11 (Am. Bar Ass’n 2020).
12
Jennifer Ahearn & Michael Milov-Cordova, The Role of Congress in Enforcing Supreme Court Ethics, 52 Hofstra L. Rev. 557, 559 (2024).
13
See infra notes 16, 42.
14
These matters included the illegal receipt of gifts from individuals with business before the Court, failure to report those gifts, and credible allegations of conflicts and partiality. See James J. Sample, Supreme Court Recusal: From Marbury to the Modern Day, 26 Geo. J. Legal Ethics 95, 133 (2013).
15
Americans See Federal Criminal Charges Against Trump as Serious, 51% Say He Should Be Prosecuted, 62% Say Politics Is Motivating DOJ’s Case, Quinnipiac University National Poll Finds; Supreme Court Job Approval Hits All-Time Low, Quinnipiac U. (June 21, 2023), https://poll.qu.edu/poll-release?releaseid=3874 [https://perma.cc/MY9U-8KYY].
16
Nancy Gertner & Stephen Gillers, Supreme Court Justices’ Unethical Code of Conduct, Bos. Globe (June 29, 2023, 3:00 AM), https://www.bostonglobe.com/2023/06/29/opinion/supreme-court-justices-unethical-code-conduct [https://perma.cc/Z7KQ-HQHQ].
17
Press Release, U.S. Sen. Comm. on the Judiciary, Durbin: Justice Alito Must Recuse Himself from Cases Related to the 2020 Election After ‘Appeal to Heaven’ Flag Was Flown at His Home (May 22, 2024), https://www.judiciary.senate.gov/press/releases/durbin-justice-alito-must-recuse-himself-from-cases-related-to-the-2020-election-after-appeal-to-heaven-flag-was-flown-at-his-home [https://perma.cc/6GVW-PMAK]; Press Release, Rep. Adam Schiff, Rep. Schiff Calls on Justices Alito and Thomas to Recuse Themselves from January 6th Cases Following NYT Reporting (May 17, 2024), https://web.archive.org/web/20240830143101/https://schiff.house.gov/news/press-releases/rep-schiff-calls-on-justices-alito-and-thomas-to-recuse-themselves-from-january-6th-cases-following-nyt-reporting [https://perma.cc/A3LJ-3LA3].
18
Deirdre Walsh & Claudia Grisales, Ginni Thomas, Wife of Supreme Court Justice, Testifies Before Jan. 6 Panel, NPR (Sept. 29, 2022, 6:04 PM), https://www.npr.org/2022/09/29/1125886442/ginni-thomas-wife-supreme-court-justice-testifies-jan-6 [https://perma.cc/FLN2-9L59].
19
Letter from Samuel A. Alito, Jr., Justice, U.S. Sup. Ct., to Sen. Richard J. Durbin, Chair, U.S. Senate Comm. on the Judiciary, and Sen. Sheldon Whitehouse, Jr., Chair, Subcomm. on Fed. Cts., Oversight, Agency Action & Fed. Rts. of the Senate Comm. on the Judiciary (May 29, 2024) [hereinafter Justice Alito Letter to Senators Durbin and Whitehouse], https://www.judiciary.senate.gov/imo/media/doc/Letter%20from%20Justice%20Alito%20to%20Senators%20Durbin%20and%20Whitehouse.pdf [https://perma.cc/3J8L-RN6F].
20
See Sample, supra note 14, at 130–36.
21
See Ethics in Government Act, 5 U.S.C. §§ 13101(10), 13103(f)(11), 13104(e)(1)(A); see also 28 U.S.C. § 455.
22
Sample, supra note 14, at 132.
23
Justice Thomas took no part in the consideration or decision to deny certiorari to former Trump attorney John Eastman’s appeal of a federal district court order to disclose communications relating to the January 6 insurrection. Eastman v. Thompson, 144 S. Ct. 248 (2023) (mem.). Though Justice Thomas did not issue a statement regarding his nonparticipation, the House committee investigating January 6 reportedly obtained emails between Ginni Thomas and Eastman concerning election denial efforts. Jacqueline Alemany, Josh Dawsey & Emma Brown, Ginni Thomas Corresponded with John Eastman, Sources in Jan. 6 House Investigation Say, Wash. Post (June 15, 2022), https://www.washingtonpost.com/national-security/2022/06/15/ginni-thomas-john-eastman-emails [https://perma.cc/JX5U-G83G].
24
Justice Alito Letter to Senators Durbin and Whitehouse, supra note 19.
25
Letter from Robert J. Conrad, Jr., Sec’y of the Jud. Conf. of the U.S., to Sen. Sheldon Whitehouse Jr., Chair, Subcomm. on Fed. Cts., Oversight, Agency Action & Fed. Rts. of the Senate Comm. on the Judiciary (Jan. 2, 2025), available at https://fingfx.thomsonreuters.com/gfx/legaldocs/zgvoaerlwvd/Whitehouse%20Letter_1.2.25.pdf [https://perma.cc/7E67-BMJ4].
26
Id.
27
Id.
28
Id.
29
Jordan Rubin, Supreme Court Justices’ Recusal Explanations Fall Along Party Lines, MSNBC (Feb. 20, 2024, 3:20 PM), https://www.msnbc.com/deadline-white-house/deadline-legal-blog/supreme-court-justices-recusal-explanations-rcna139617 [https://perma.cc/HE2C-CH7A].
30
See, e.g., Dorsey v. United States, No. 23-685, slip op. at 15 (U.S. Feb. 20, 2024) (denying certiorari) (Kagan, J., recusing, citing Section 455 and Canon 3B); Liquida Techs., Inc. v. United Therapeutics Corp., No. 23-804, slip op. at 15 (U.S. Feb. 20, 2024) (denying certiorari) (Jackson, J., recusing, citing same); Ford v. United States, No. 23-6403, slip op. at 16–17 (U.S. Feb. 20, 2024) (denying certiorari) (Kagan, J., recusing, citing same).
31
See, e.g., Barnes v. Adkins, No. 23M57, slip op. at 2 (U.S. Feb. 20, 2024) (denying motion for leave to proceed as a veteran) (Barrett, J., recusing, without explanation); Truck Ins. Exch. v. Kaiser Gypsum Co., No. 22-1079, slip op. at 2–3 (U.S. Feb. 20, 2024) (granting motions for divided argument and for Solicitor General’s participation as amicus curiae) (Alito, J., recusing, without explanation); In re Tonya Knowles, No. 23-6246, slip op. at 18 (U.S. Feb. 20, 2024) (denying petition for writ of mandamus) (Roberts, C.J., recusing, without explanation).
32
Jodi Kantor & Abbie VanSickle, Inside the Supreme Court Ethics Debate: Who Judges the Justices?, N.Y. Times, (Dec. 5, 2024), https://www.nytimes.com/2024/12/03/us/supreme-court-ethics-rules.html [https://perma.cc/4AFX-JE9F].
33
Last Week Tonight, Supreme Court Ethics: Last Week Tonight With John Oliver, YouTube (Feb. 18, 2024), https://www.youtube.com/watch?v=GE-VJrdHMug [https://perma.cc/QB4D-RQ5Z]; Saturday Night Live, Fox and Friends Cold Open: Supreme Court Confirmation Hearings, YouTube (Apr. 2, 2022) https://www.youtube.com/watch?v=leSjiO6Wqyg [https://perma.cc/3BUG-Z9XE].
34
Mark Sherman, To Recuse or Refuse? A Look at Supreme Court Justices’ Decisions on Whether to Step Aside in Cases, Assoc. Press (May 29, 2024, 5:19 PM), https://apnews.com/article/supreme-court-alito-flags-recusal-capitol-riot-f4ef46683365c92e8a3ff9df7894b586 [https://perma.cc/UE8S-F8J6].
35
Code of Conduct, supra note 6, at 13.
36
Id. at 13.
37
Id. at 10.
38
Id. at 2.
39
Letter from Hon. John Roberts, Chief Justice of the Sup. Ct., to Hon. Richard J. Durbin, Chairman of S. Comm. on the Judiciary, Exhibit A at 2 (Apr. 25, 2023), https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20Chairman%20Durbin%2004.25.2023.pdf%5Bhttps://perma.cc/L3QQ-Q4DC%5D (“Recusals are noted in the Court’s decisions, both at the certiorari and merits stages. In 35 recent years, there have been approximately 200 recusals per year at the certiorari stage and a few at the merits stage as well. In many instances, the grounds for recusal will be obvious—for example, when recusal is due to a Justice’s prior employment as a circuit judge or in the Office of the Solicitor General. In some cases, public disclosure of the basis for recusal would be ill-advised. Examples include circumstances that might encourage strategic behavior by lawyers who may seek to prompt recusals in future cases.”).
40
Code of Conduct, supra note 6, at 10.
41
Id. at 11.
42
See generally Ahearn & Milov-Cordova, supra note 12; James J. Sample, The Supreme Court and the Limits of Human Impartiality, 52 Hofstra L. Rev. 579 (2024).
43
28 U.S.C. § 455(a).
44
Id. § 455(b). Because this Article is concerned with the general applicability of the law of disqualification to the Justices of the Supreme Court, the narrower provisions contained within Section 455(b) will not bear close analysis.
45
John P. Frank, Disqualification of Judges: In Support of the Bayh Bill, 35 L. & Contemp. Probs. 43, 51 n.35 (1970) [hereinafter Frank, Disqualification].
46
334 F.2d 360, 369 n.2 (5th Cir. 1964).
47
Id. at 362.
48
See id. at 369 n.2.
49
See id.
50
To Broaden and Clarify the Grounds for Judicial Disqualification: Hearing on S. 1886, S. 1553, and S. 1064 Before the S. Subcomm. on Improvements in Jud. Mach. of the Comm. on the Jud., 92nd Cong. 114 (1971) [hereinafter Judicial Disqualification Improvement Hearing] (statement of John P. Frank, Att’y, Phoenix, Ariz.).
51
384 U.S. 436 (1966); see Jonathan L. Entin, In Memoriam: John P. Frank, 53 Case W. Rsrv. L. Rev. 239, 239 (2002).
52
347 U.S. 483 (1954); see Entin, supra note 51, at 329.
53
See, e.g., John P. Frank, Commentary on Disqualification of Judges—Canon 3 C, 1972 Utah L. Rev. 377 (1972).
54
Frank, Disqualification, supra note 45, at 51.
55
See infra Part IV.
56
H.R. Rep. No. 93-1453, at 6352 (1974).
57
Id. at 6355.
58
Id. (emphasis added).
59
Id.
60
486 U.S. 847, 865 (1988).
61
Id. at 870.
62
Id. at 864.
63
Id. at 870–73 (Rehnquist, C.J., dissenting).
64
28 U.S.C. § 455(e).
65
Code of Conduct, supra note 6, at 2–4.
66
Judicial Disqualification Improvement Hearing, supra note 50, at 42–43, 48–51, 75, 83–84, 90–91, 109–16.
67
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 886–91 (2009); see also In re Murchison, 349 U.S. 133, 136 (1955) (“Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.”).
68
556 U.S. at 872–73.
69
Id. at 886–87.
70
Id. at 887.
71
Id. at 886.
72
Id.at 888.
73
Id. at 899–900.
74
Id. at 890–93, 899 (Roberts, C.J., dissenting).
75
Id. at 893.
76
Id. at 902–03 (Scalia, J., dissenting).
77
See Code of Conduct, supra note 6, at 2–3.
78
Id. at 10.
79
Id. at 10, 13.
80
See 28 U.S.C. §§ 1, 2109.
81
Ch. 20, 1 Stat. 73. The original quorum of the Court was set at four Justices out of six. Id.
82
See History of the Federal Judiciary: The Supreme Court of the United States and the Federal Judiciary, Fed. Jud. Ctr., https://www.fjc.gov/history/courts/supreme-court-united-states-and-federal-judiciary (last visited Dec. 10, 2024) [https://perma.cc/BQ8L-WCKY].
83
28 U.S.C. § 2109.
84
Id.
85
“So the practice established by the Court on its very first day was that when a quorum is lacking, the Court adjourns until it can meet with a quorum. That practice is now enshrined in the Court’s Rule 4.2, which states: ‘In the absence of a quorum on any day appointed for holding a session of the Court, the Justices attending—or if no Justice is present, the Clerk or a Deputy Clerk—may announce that the Court will not meet until there is a quorum.’” Jack Metzler, The Quorum Rule, 23 Green Bag 2d 103, 104–05 (2020) (quoting Sup. Ct. R. 4.2).
86
See 28 U.S.C. § 2109, hist. & revision nn. (West, Westlaw through Pub. L. No. 119-1).
87
See, e.g., Chrysler Corp. v. United States, 314 U.S. 583, 583 (1942) (mem.).
88
322 U.S. 716 (1944) (certifying and transferring to the Second Circuit for lack of quorum).
89
See 15 U.S.C. § 29.
90
See 28 U.S.C. § 24 (1946); see also 28 U.S.C. § 47 (1948). The exact nature and rationale of the four Alcoa disqualifications is unknown, but some scholars have offered theories. Some contend that four Justices held stock in the corporate defendant. Jeffrey W. Stempel, Rehnquist, Recusal, and Reform, 53 Brook. L. Rev. 589, 648 (1987). Other scholars contend that the four Justices chose to recuse themselves because they had close ties to the Department of Justice who brought suit. Marc Winerman & William E. Kovacic, Learned Hand, Alcoa, and the Reluctant Application of the Sherman Act, 79 Antitrust L.J. 295, 299 n.22 (2013). The exact reason for the disqualifications should be the subject of further investigation by Supreme Court archivists.
91
Code of Conduct for U.S. Judges 8–10 (Jud. Conf. of the U.S. 2019).
92
An Act to Amend the Expediting Act, ch. 239, 58 Stat. 272 (1944) (amending 15 U.S.C. § 29).
93
Act of June 25, 1948, ch. 646, 62 Stat. 963 (1948) (amending 28 U.S.C. § 2109).
94
Id.
95
See 28 U.S.C. § 2109, hist. and revision nn. (“The second paragraph of the revised section is new. It recognizes the necessity of final disposition of litigation in which appellate review has been had and further review by the Supreme Court is impossible for lack of a quorum of qualified justices.”).
96
339 U.S. 974 (1950).
97
459 U.S. 1190 (1983).
98
See, e.g., MacTruong v. Abbott, 144 S. Ct. 544 (2024); Johnson v. United States, 586 U.S. 801 (2018); Smith v. Scalia, 577 U.S. 1002 (2015); Sibley v. Supreme Court of U.S., 568 U.S. 801 (2012); Awala v. Five U.S. Supreme Ct. Justs., 552 U.S. 1088 (2008).
99
Code of Conduct, supra note 6, at 10 (“And the absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court—potentially preventing the Court from providing a uniform national rule of decision on an important issue.”).
100
532 U.S. 557 (2001).
101
519 U.S. 801 (1996); see Ass’n of the Bar of the City of N.Y, The Supreme Court Needs a Mandatory and Enforceable Code of Ethics 100 (2024), https://www.nycbar.org/wp-content/uploads/2024/09/20221365_ScotusEthics.pdf [https://perma.cc/Y8J8-XNKW].
102
Code of Conduct, supra note 6, at 10.
103
See Rehnquist Defends His Role in Decision on Spying by Army, N.Y. Times, Oct. 11, 1972, at 20, 89 (“Senator Gravel argued that Justice Rehnquist should step aside because he had helped prepare the Government’s case in its efforts to stop The New York Times and The Washington Post from publishing the papers.”); Sharon Turkish Jacobson, The Elusive Appearance of Propriety: Judicial Disqualification Under Section 455, 25 DePaul L. Rev. 104, 107–08 (1975) (“Since Rehnquist did not consider the ‘appearance of justice’ standard nor the newly adopted ABA Code, many commentators felt that Justice Rehnquist had followed the bare letter and not the spirit of section 455.”).
104
408 U.S. 1 (1972).
105
See Jacobson, supra note 103.
106
Rehnquist’s memorandum detailing his decision not to recuse himself can be found at Laird v. Tatum, 409 U.S. 824 (1972).
107
Adam Liptak & Johnathan Glater, Papers Offer Close-Up of Rehnquist and the Court, N.Y. Times (Nov. 17, 2008), https://www.nytimes.com/2008/11/18/washington/18rehnquist.html [https://perma.cc/Q6VU-6L3K].
108
Case Comment, Justice Rehnquist’s Decision to Participate in Laird v. Tatum, 73 Colum. L. Rev. 106, 124 (1973).
109
Act of Dec. 5, 1974, Pub. L. 93-512, § 1, 88 Stat. 1609 (codified as amended at 28 U.S.C. §455).
110
See Judicial Disqualification Improvement Hearing, supra note 50.
111
Id. at114. The committee also included, in the appendix to the record, Justice Rehnquist’s memorandum explaining why he would not recuse himself in Laird. Id. at 170. The committee only identified this inclusion as one of its “further examples of the nature of the subject of judicial disqualification.” Id. at 134.
112
418 U.S. 683 (1974).
113
Liptak & Glater, supra note 107.
114
452 U.S. 713 (1981).
115
472 U.S. 511 (1985).
116
Memorandum from William H. Rehnquist to the Conference, Re: No. 79-880 Kissinger v. Halperin, (May 27, 1981), cited in Tuan Samahon, Reply: Rehnquist’s Recusal, 10 Green Bag 2d at 207 (2007), https://greenbag.org/v10n2/v10n2_articles_samahon.pdf [https://perma.cc/C89G-EHMD].
117
See Nixon, 418 U.S. at 683 (Rehnquist, J., recusing).
118
Biography of Chief Justice John G. Roberts Jr., Nat’l Archives, https://georgewbush-whitehouse.archives.gov/infocus/judicialnominees/roberts.html (last visited Apr. 1, 2025) [https://perma.cc/E8FS-W5KK].
119
449 U.S. 200 (1980).
120
Id. at 200–01, 211–17.
121
Press Release, Sup. Ct. of the U.S., Statement of Recusal Policy (Nov. 1, 1993), https://www.politico.com/f/?id=00000183-8648-d513-a19b-9fdc5acd0000 [https://perma.cc/9ZHW-ZG5Y].
122
Code of Conduct, supra note 6, at 11.
123
See Act of Dec. 5, 1974, Pub. L. 93-512, § 1, 88 Stat. 1609 (codified as amended at 28 U.S.C. §455).
124
See Press Release, Sup. Ct. of the U.S., supra note 121.
125
Code of Conduct, supra note 6, at 11.
126
Id. at 10–11.
127
530 U.S. 1301 (2000).
128
Id. at 1302.
129
Id. at 1303.
130
Tobi Raji & Arron Schaffer, A Chief Justice Didn’t Recuse in a Major Case. This Justice Disagreed., Wash. Post. (June 26, 2023), https://www.washingtonpost.com/history/2023/06/26/supreme-court-recusal-history-stevens-rehnquist [https://perma.cc/22TW-JMR9] (“Stevens believed that the appearance of a conflict of interest between the chief justice and his son should have been enough for Rehnquist to recuse himself from the Justice Department’s case against Microsoft, the clerk said. Stevens wrote, ‘APPEARANCE – !!!,’” on the front page.”).
131
Case Comment, supra note 108, at 120.
132
573 U.S. 134 (2014).
133
Justin Elliott, Joshua Kaplan & Alex Mierjeski, Justice Samuel Alito Took Luxury Fishing Vacation with GOP Billionaire Who Later Had Cases Before the Court, ProPublica (June 20, 2023, 11:49 PM), https://www.propublica.org/article/samuel-alito-luxury-fishing-trip-paul-singer-scotus-supreme-court [https://perma.cc/8AN8-A2US].
134
Id.
135
Samuel A. Alito, Jr., Justice Samuel Alito: ProPublica Misleads Its Readers, Wall St. J. (June 20, 2023, 6:25PM), https://www.wsj.com/articles/propublica-misleads-its-readers-alito-gifts-disclosure-alaska-singer-23b51eda [https://perma.cc/3X9E-AJ42].
136
Id.
137
Id.
138
Justice Alito Letter to Senators Durbin and Whitehouse, supra note 19.
139
Id.
140
Id.
141
Id.
142
Sao Paulo v. Am. Tobacco Co., 535 U.S. 229, 232–33 (2002) (“§ 455(a) requires judicial recusal ‘if a reasonable person, knowing all the circumstances,’” would reasonably question the judge’s impartiality); see also H.R. Rep. No. 93-1453, at 6355 (1974).
143
144 S. Ct. 2176 (2024).
144
Jodi Kantor & Adam Liptak, How Roberts Shaped Trump’s Supreme Court Winning Streak, N.Y Times (Sept. 15, 2024), https://www.nytimes.com/2024/09/15/us/justice-roberts-trump-supreme-court.html [https://perma.cc/EGG5-KKGG].
145
Id.
146
144 S. Ct. 248 (2023) (mem.).
147
Rachel Martin & Nina Totenberg, Ginni Thomas Reportedly Pressed Trump’s Chief of Staff on Overturning the Election, NPR (Mar. 25, 2022, 9:31 AM), https://www.npr.org/2022/03/25/1088720571/ginni-thomas-tex-messages-mark-meadows-2020-election [https://perma.cc/JKD2-5M2W]. These efforts include her attendance at the January 6 rally on the Ellipse and her twenty-nine text messages to the then-president’s chief of staff in support of efforts to overturn the election results. Id.
148
142 S. Ct. 680 (2022) (mem.).
149
Id.
150
144 S. Ct. 2680 (2024) (mem.).
151
Charlie Savage, Justice Neil Gorsuch Recuses from Case That Could Benefit Colorado Billionaire, N.Y. Times (Dec. 5, 2024), https://www.nytimes.com/2024/12/05/us/politics/justice-gorsuch-recusal-philip-anschutz.html [https://perma.cc/T6HM-CD26]. The article published by the New York Times acknowledges that the Code of Conduct puts a gloss on the law of disqualification established by Section 455 and goes on to point out the Court’s reference to their supposedly heightened “duty to sit.” Id. Additionally, the article identifies this as the first time that a Justice has publicly cited the Code of Conduct, though Justice Alito had previously cited the Code of Conduct as the standard for disqualification in his May 2024 letter to Senator Durbin referenced above. See supra note 19.
152
Letter from Scott S. Harris, Clerk, Sup. Ct. of the U.S., to Counsel in Seven Cnty. Infrastructure Coal. v. Eagle Cnty., No. 23-975 (Dec. 4, 2024),https://static01.nyt.com/newsgraphics/documenttools/061cc12cd9870721/1018c3cd-full.pdf [https://perma.cc/C2GX-Y7WR].
153
Letter from Hank Johnson, Rep., U.S. House of Rep. to Neil Gorsuch, Assoc. Just., Sup. Ct. of the U.S. (Nov. 20, 2024), https://hankjohnson.house.gov/sites/evo-subsites/hankjohnson.house.gov/files/evo-media-document/2024.11.20%20Letter%20to%20Justice%20Gorsuch.pdf [https://perma.cc/7AV3-RYMU].
154
Id.
155
Id.
156
Id.
157
Id.
158
603 U.S. 369, 396 (2024).
159
467 U.S. 837 (1984).
160
Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, 66 Admin. L. Rev. 253, 270–73 (2014).
161
Id.
162
See 28 U.S.C. § 1.
163
See Laird v. Tatum, 409 U.S. 824, 837 (1972) (mem.) (“Those federal courts of appeals which have considered the matter have unanimously concluded that a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.”).
164
See 28 U.S.C. § 455(a).
165
Code of Conduct, supra note 6, at 11.
166
Bradley v. Milliken, 426 F. Supp. 929, 933–34 (E.D. Mich. 1977) (“No judge, of course, has a duty to sit where his impartiality might be reasonably questioned. However, the new test should not be used by judges to avoid sitting on difficult or controversial cases . . . The ultimate issue committed to the exercise of sound judicial discretion is whether a reasonable man would infer that the judge’s impartiality is, under all the circumstances, subject to question.”) (citations omitted).
167
United States v. Mobley, 971 F.3d 1187, 1205 (10th Cir. 2020) (“Though judges have a strong duty to recuse when appropriate, they also have a strong ‘duty to sit,’ and § 455 must not be so broadly construed as to make recusal mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.”) (citations and internal quotation marks omitted).
168
H.R. Rep. No. 93-1453, at 6351, 6355 (1974).
169
See generally 26 Cl. Ct. 219 (1992).
170
Id. at 221–22.
171
See Raji & Schaffer, supra note 130.
172
See, e.g., Blizard v. Frechette, 601 F.2d 1217, 1221 (1st Cir. 1979) (“A trial judge must hear cases unless some reasonable factual basis to doubt the impartiality or fairness of the tribunal is shown by some kind of probative evidence. In this sense, i.e., that judges hear cases unless there is some reason not to, the ‘duty to sit’ remains.”); see also Conklin v. Warrington Twp., 476 F. Supp. 2d 458, 463 (M.D. Pa. 2007) (“Indeed, a judge ‘has as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when the law and facts require.’”).
173
Judicial Disqualification Improvement Hearing, supra note 50, at 11, 40, 48, 50, 64.
174
Indeed, a judge has “as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when the law and facts require.” United States v. Westmoreland, 419 F. Supp. 3d 1277, 1278 (D. Utah 2019) (citation and internal quotation marks omitted). See also Fernandez-Santos v. United States, 530 F. Supp. 3d 208, 221 (D.P.R. 2021) (“[U]nder § 455(a) a judge has a duty to recuse himself if his impartiality can reasonably be questioned; but otherwise he has a duty to sit.”).
175
Additionally, if a Justice has committed substantial time to a matter only to have a financial conflict of interest emerge which would disqualify them from the matter, they can divest that particular interest to avoid disqualifying themselves. See 28 U.S.C. § 455(f); see also 28 U.S.C. 455(e).
176
The federal courts of appeals almost uniformly apply an abuse of discretion standard when reviewing refusals to withdraw under Section 455(a). Only the 7th Circuit deviates from this norm. See United States v. Walsh, 47 F.4th 491, 498–99 (7th Cir. 2022) (“Indeed, we stand alone as the only circuit to employ a de novo standard of review to § 455 recusal decisions; every other circuit reviews them for abuse of discretion. So applying the deferential clear-error standard to factual findings brings us closer to the approach used by our sister circuits in this context.”).
177
Statement on Ethics Principles and Practices, supra note 39.
178
Code of Conduct, supra note 6, at 2.
179
In the commentary to Canon 3B of the Supreme Court Code of Conduct, the Justices also cite Justice Frankfurter’s dissent in Dick v. New York Life Ins. Co., 359 U.S. 437, 459 (1959) (Frankfurter, J., dissenting), for the proposition that the loss of even a single justice may undermine the “fruitful interchange of minds which is indispensable” to the Court’s decision-making process. Justice Frankfurter made the “fruitful interchange” statement in reference to the need for the Court to prioritize certain cases during certiorari determinations. Justice Frankfurter was then making the point that it was imperative for the Court to deny unworthy petitions to allow time for thorough discussion of a case’s merits amongst the Justices. The statement has nothing to do with recusal. On its face, there is nothing preventing fewer than nine Justices from having a fruitful interchange of minds.
180
See Code of Conduct, supra note 6, at 10.
181
Id. at 10–11.
182
541 U.S. 913, 916 (2004) (mem.).
183
Code of Conduct, supra note 6, at 10.
184
530 U.S. 1301 (2000) (mem.).
185
Code of Conduct, supra note 6, at 11.
186
Id.
187
Id.
188
Id. at 2–3.
189
Adam Liptak, Dynamics are Shifting in an 8-Member Supreme Court, N.Y. Times (Apr. 4, 2016), https://www.nytimes.com/2016/04/05/us/politics/dynamics-are-shifting-in-an-8-member-supreme-court.html [https://perma.cc/E55X-M8QW].
190
Adam Liptak, Justice Alito Addresses Prospect of an 8-Member Court, N.Y. Times (Feb. 23, 2016) https://www.nytimes.com/2016/02/24/us/politics/justice-alito-addresses-prospect-of-an-8-member-court.html [https://perma.cc/FHU3-CUVR].
191
See United States v. Will, 449 U.S. 200, 213, 216–17 (1980).
192
Code of Conduct, supra note 6, at 3.
193
John P. Frank, Disqualification of Judges, 56 Yale L.J. 605, 611 (1947) (“‘[T]he settled rule of law is that, although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may, but must do so if the case cannot be heard otherwise.’”) (quoting Sir Frederick Pollock, First Book of Jurisprudence 270 (6th ed. 1929)).
194
Will, 449 U.S. at 213–14 n.14 (citing 2 Henry Rolle, An Abridgment of Many Cases and Resolutions at Common Law 93 (1668) (translation)).
195
Code of Conduct, supra note 6, at 10 (“The Supreme Court consists of nine Members who sit together. The loss of even one Justice may undermine the ‘fruitful interchange of minds which is indispensable’ to the Court’s decision-making process.”) (citations omitted).
196
See 449 U.S. at 214 nn.16–17.
197
Code of Conduct, supra note 6, at 3.
198
Id. at 11.
199
Id. (citing Will, 449 U.S. at 217).
200
449 U.S. at 200.
201
Id. at 212.
202
Id.
203
Id. at 215 (citing Evans v. Gore, 253 U.S. 245 (1920), overruled by O’Malley v. Woodrough, 307 U.S. 277 (1939), and United States v. Hatter, 532 U.S. 557 (2001)).
204
253 U.S. at 246.
205
Id. at 248.
206
Id.
207
Will, 449 U.S. at 200, 217.
208
Id. at 217.
209
Id. at 217 n.20 (“[The Judiciary Act of 1911] applied only to district judges, but its existence demonstrates that the Rule of Necessity has continued in force side by side with statutory disqualification standards.”).
210
Id. at 212.
211
Id. at 213.
212
See, e.g., Brinkley v. Hassig, 83 F.2d 351, 357 (10th Cir. 1936) (“If the law provides for a substitution of personnel on a board or court, or if another tribunal exists to which resort may be had, a disqualified member may not act.”).
213
See generally H.R. Rep. No. 93-1453 (1974).
214
Id. at 6351, 6354.
215
Id. at 6352–53.
216
Code of Conduct, supra note 6, at 11.
217
Model Code of Jud. Conduct r. 2.11 (Am. Bar Ass’n 2020).
218
Model Code of Jud. Conduct r. 2.11 cmt. 3 (Am. Bar Ass’n 2020).
219
See generally Code of Conduct, supra note 6.
220
453 F.3d 1160 (9th Cir. 2006).
221
Haase v. Countrywide Home Loans, Inc., 838 F.3d 665, 665 (5th Cir. 2016).
222
See United States v. Will, 449 U.S. 200, 217 (1980).
223
See, e.g., id.;Evans v. Gore, 253 U.S. 245 (1920).
224
Will, 449 U.S. at 217.
225
28 U.S.C. §§ 1, 2109.
226
See 28 U.S.C. § 455.
227
Id. §§ 455(a), (b).
228
Id. § 455(e).
229
Id. § 455(f).
230
See, e.g., Code of Conduct, supra note 6, at 1–2; Code of Conduct for U.S. Judges (Jud. Conf. of the U.S. 2019), https://www.uscourts.gov/sites/default/files/code_of_conduct_for_united_states_judges_effective_march_12_2019.pdf [https://perma.cc/R45T-9UXZ]. This provision should refer specifically to the existing disqualification provisions in subsections (a), (b), (e), and (f), so as to not include the new “rule of necessity” exception described below.
231
See, e.g., 28 U.S.C. §§ 291–96 (permitting assignment of judges to other federal courts); 28 U.S.C. § 1 (permitting the Court to consider a case with a quorum of six Justices); 28 U.S.C. § 2109 (establishing procedures for consideration of a case for which the Court lacks a quorum).
232
See 28 U.S.C. § 2109. In turn, Congress may wish to modify § 2109 to refer to this subsection of § 455.
233
Code of Conduct, supra note 6, at 10.
234
See, e.g., U.S. Const. art. II, § 2 (providing that the Supreme Court’s appellate jurisdiction is subject to “Exceptions” and “Regulations” established by Congress); see also U.S. Const. art. I, § 8, cl. 18 (necessary and proper clause).
235
Ahearn & Milov-Cordova, supra note 12, at 561–62 (2024) (explaining that as early as 1792 “Congress passed legislation requiring lower court judges to recuse themselves” in certain cases).
236
See, e.g., Judiciary Act of 1789, ch. 20, § 1, 1 Stat. 73, 73 (establishing that the Supreme Court consisted of six Justices, any four of which constituted a quorum); Judiciary Act of 1801, ch. 4, §§ 1, 3, 2 Stat. 89, 89 (reducing size of the Court to five Justices “after the next vacancy”); Act of Mar. 8, 1802, ch. 9, § 1, 2 Stat. 132, 133 (increasing size of the Court to six Justices); Act of Feb. 24, 1807, ch. 16, § 5, 2 Stat. 420, 421 (increasing size of the Court to seven Justices); Act of Mar. 3, 1837, ch. 34, § 1, 5 Stat. 176, 176 (increasing the size of the Court to nine Justices, any five of which constituted a quorum); Act of Mar. 3, 1863, ch. 100, § 1, 12 Stat. 794, 794 (increasing the size of the Court to ten Justices, any six of which constituted a quorum); Judiciary Act of 1866, ch. 210, 14 Stat. 209, 209 (reducing the size of the Court to seven Justices, any four of which constituted a quorum); Circuit Judges Act of 1869, ch. 22, 16 Stat. 44, 44 (increasing the size of the Court to nine Justices, any six of which constitute a quorum).

Uncategorized

The Law of Disqualification and Problems with the Supreme Court Code of Conduct

I. Background

II. Historical Interpretation of the Law of Disqualification

A. Section 455

B. Due Process, Impartiality, and Disqualification

C. Textual Understanding of Resolution Procedures in the Absence of a Quorum

D. Historical Implementation of Title 28 U.S.C. § 2109

E. Justice Rehnquist and Modern Judicial Disqualification

F. The Roberts Court

III. The Duty to Sit

A. The “Duty to Sit” in Modern Jurisprudence

B. Questions Regarding the Roberts Court’s Interpretation

IV. The “Rule of Necessity”

A. United States v. Will

B. The Unchanged “Rule of Necessity”

C. Misleading ABA Quotation

D. Practical Application of the “Rule of Necessity”

V. Need for Additional Reforms

Conclusion

References:

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