Examining what's involved with a Supeme Court justice's recusal

Examining what's involved with a Supeme Court justice's recusal

Transcript¹

NPR's Leila Fadel talks to Louis Virelli, a law professor at Stetson University in Florida, about whether Supreme² Court justices should recuse themselves from certain cases.

LEILA FADEL, HOST:

With Supreme Court rulings on high-profile, controversial cases expected soon and with a new associate justice headed for the high court, questions about recusals are front and center. The court's newest justice, Ketanji Brown Jackson, has already said she'd recuse herself from a Harvard affirmative action case coming before the court because she sits on Harvard's board of overseers. And there's a brewing³ controversy⁴ around Justice Clarence Thomas because of his wife's texts about the election. But the Supreme Court has different rules than lower courts. And only the justices have the final say in whether they will step aside from a case. I asked Louis Virelli, a law professor at Stetson University, about past recusals and what it takes to change a Supreme Court rule.

LOUIS VIRELLI: There is no way to hold a justice directly accountable for a failure to recuse or for a recusal decision that shouldn't have been made that was inappropriate, and there has never been. There is a law that says a justice shall recuse under certain circumstances. It's the same law that applies to lower court judges in the federal system. The justices generally pay homage⁵ to that law, but do not apply it strictly⁶ to themselves. And there's a reason for that. When you recuse a Supreme Court justice, that justice cannot be replaced. Lower court judges are replaceable. So you change the number and makeup⁷ of the court when you recuse a justice from a decision.

FADEL: OK. So then let's specifically talk about the decision by this newest justice to recuse herself from a case on affirmative action at Harvard, where she sits on the board. That will definitely change the makeup of who decides and it will change, possibly, the outcome of that decision. So how impactful will it be that she's recused herself in this case?

VIRELLI: It could be very impactful. Now, I think the general consensus⁸ is it's unlikely to change the outcome in this particular case given the questions presented in this court. But her decision represents the kind of balancing that Supreme Court justices always have to do. And that is a justice has to decide whether it's more important to have a fully⁹ constituted court for a given case, or it's more important for them to make an ethical¹⁰ decision about their involvement and remove themselves.

FADEL: There are some that would say it should change, you know? There are critics that say there should be a more hard and fast rule so that people pull themselves out or stay in not on a discretionary basis. Is that a view you agree with, disagree with?

VIRELLI: I generally disagree with the notion that a code of ethics¹¹ would help. There's been 18 bills introduced in Congress since 2011, by my count, applying a code of ethics to the justices. And my response is that there is a binding¹² law on the books that tells justices when to recuse. And they have all consistently treated it as advisory¹³. Several justices of all ideological¹⁴ stripes have testified before Congress and said that a binding code won't work for the justices because the decision is so context-specific. So adding a code of ethics on top of a binding law that currently isn't achieving our goals strikes me as highlighting a problem without providing a solution. It would just create another set of standards that the justices will apply contextually and leave us where we currently are.

FADEL: And you talked about how it's always been like this. This isn't a surprise. This is how the court works. And there are reasons for that. But we're also operating in a very highly politicized moment in the country, where people are questioning institutions and whether they serve the public. And so in this moment, is it different when you have, for example, the loudest voices calling for Justice Thomas to recuse himself on the left. Those, even before the confirmation¹⁵, happened for Ketanji Brown Jackson. There were calls for her to recuse herself in the case that she ultimately has already decided¹⁶ to recuse herself from. Will people's faith in the court be chipped away at?

VIRELLI: Potentially, yes. And of course, Justice Barrett faced the same questions about recusal involving an election case because she was confirmed right around the election. And the biggest concern is the one you raise. Public perception of the court's legitimacy¹⁷ is unquestionably the thing that is in most peril¹⁸ as we become more ideologically¹⁹ divided and as questions like those confronting Justice Thomas sort of become public. I think there are lots of reasons for Justice Thomas to recuse around cases that could involve his wife's communications or his wife as a witness or his wife's conduct. And I think those, as an ethical matter and as a constitutional matter, are easy questions.

FADEL: And just to give people context - his wife, Ginni Thomas, her texts were revealed. She had strong opinions. She was there on January 6 before the actual attack.

VIRELLI: That's right. If a case would arrive before the court that involved Ginni Thomas' conduct and certainly, of course, if she were a witness, then I would think, not as a matter of statutory law necessarily, but as a matter of constitutional law, as a matter of due process, Justice Thomas would be required to recuse himself. And of course, that leads to the question, what if he doesn't?

FADEL: Right.

VIRELLI: And the reality is, we don't have a way to enforce that beyond impeachment²⁰. And how profound of a violation²¹ would we have to discover in order to inspire a movement for impeachment, let alone the political realities that would likely weigh against impeachment, right? We are not in a political environment where impeachment and removal are likely. That is the only constitutional remedy against a justice. They could do this to themselves. So the court could adopt its own code. That's easy. But that's highly, highly unlikely based on my research of past comments and conduct by the justices. The justices do not want to be seen as removing one another from cases.

FADEL: So in this case right now, what is the danger around whether to go with one public opinion or the other in a very polarizing case when it comes to making your decision as to recuse or not to recuse?

VIRELLI: Right. So when I talk about public opinion, it's really public perception, public confidence in the court. So the current state of political divisiveness in America may very well counsel for a dramatic change in the way the court operates. That has to happen through constitutional amendment²² or through the justices themselves. Congress doesn't currently have the power to do that because of the way the separation of powers is structured in our Constitution and the way it works. Requiring recusal simply hasn't worked not because the justices aren't recusing, because they're not recusing based on the statute²³. It's possible to create different structures through constitutional amendment where there are checks on the court. But that's the only obvious way to create constraints²⁴ on the court that are enforceable that don't currently exist.

FADEL: That's Louis Virelli, a professor at Stetson University College of Law.

(SOUNDBITE OF AUKAI'S "AKAL KI")

1 transcript   

n.抄本，誊本，副本，肄业证书

参考例句：

• A transcript of the tapes was presented as evidence in court.一份录音带的文字本作为证据被呈交法庭。
• They wouldn't let me have a transcript of the interview.他们拒绝给我一份采访的文字整理稿。

2 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

3 brewing   

n. 酿造, 一次酿造的量 动词brew的现在分词形式

参考例句：

• It was obvious that a big storm was brewing up. 很显然，一场暴风雨正在酝酿中。
• She set about brewing some herb tea. 她动手泡一些药茶。

4 controversy   

n.争论，辩论，争吵

参考例句：

• That is a fact beyond controversy.那是一个无可争论的事实。
• We ran the risk of becoming the butt of every controversy.我们要冒使自己在所有的纷争中都成为众矢之的的风险。

5 homage   

n.尊敬，敬意，崇敬

参考例句：

• We pay homage to the genius of Shakespeare.我们对莎士比亚的天才表示敬仰。
• The soldiers swore to pay their homage to the Queen.士兵们宣誓效忠于女王陛下。

6 strictly   

adv.严厉地，严格地；严密地

参考例句：

• His doctor is dieting him strictly.他的医生严格规定他的饮食。
• The guests were seated strictly in order of precedence.客人严格按照地位高低就座。

7 makeup   

n.组织；性格；化装品

参考例句：

• Those who failed the exam take a makeup exam.这次考试不及格的人必须参加补考。
• Do you think her beauty could makeup for her stupidity?你认为她的美丽能弥补她的愚蠢吗？

8 consensus   

n.(意见等的)一致，一致同意，共识

参考例句：

• Can we reach a consensus on this issue?我们能在这个问题上取得一致意见吗？
• What is the consensus of opinion at the afternoon meeting?下午会议上一致的意见是什么？

9 fully   

adv.完全地，全部地，彻底地；充分地

参考例句：

• The doctor asked me to breathe in,then to breathe out fully.医生让我先吸气，然后全部呼出。
• They soon became fully integrated into the local community.他们很快就完全融入了当地人的圈子。

10 ethical   

adj.伦理的，道德的，合乎道德的

参考例句：

• It is necessary to get the youth to have a high ethical concept.必须使青年具有高度的道德观念。
• It was a debate which aroused fervent ethical arguments.那是一场引发强烈的伦理道德争论的辩论。

11 ethics   

n.伦理学；伦理观，道德标准

参考例句：

• The ethics of his profession don't permit him to do that.他的职业道德不允许他那样做。
• Personal ethics and professional ethics sometimes conflict.个人道德和职业道德有时会相互抵触。

12 binding   

有约束力的，有效的，应遵守的

参考例句：

• The contract was not signed and has no binding force. 合同没有签署因而没有约束力。
• Both sides have agreed that the arbitration will be binding. 双方都赞同仲裁具有约束力。

13 advisory   

adj.劝告的，忠告的，顾问的，提供咨询

参考例句：

• I have worked in an advisory capacity with many hospitals.我曾在多家医院做过顾问工作。
• He was appointed to the advisory committee last month.他上个月获任命为顾问委员会委员。

14 ideological   

a.意识形态的

参考例句：

• He always tries to link his study with his ideological problems. 他总是把学习和自己的思想问题联系起来。
• He helped me enormously with advice on how to do ideological work. 他告诉我怎样做思想工作，对我有很大帮助。

15 confirmation   

n.证实，确认，批准

参考例句：

• We are waiting for confirmation of the news.我们正在等待证实那个消息。
• We need confirmation in writing before we can send your order out.给你们发送订购的货物之前，我们需要书面确认。

16 decided   

adj.决定了的，坚决的；明显的，明确的

参考例句：

• This gave them a decided advantage over their opponents.这使他们比对手具有明显的优势。
• There is a decided difference between British and Chinese way of greeting.英国人和中国人打招呼的方式有很明显的区别。

17 legitimacy   

n.合法，正当

参考例句：

• The newspaper was directly challenging the government's legitimacy.报纸直接质疑政府的合法性。
• Managing from the top down,we operate with full legitimacy.我们进行由上而下的管理有充分的合法性。

18 peril   

n.(严重的)危险；危险的事物

参考例句：

• The refugees were in peril of death from hunger.难民有饿死的危险。
• The embankment is in great peril.河堤岌岌可危。

19 ideologically   

adv. 意识形态上地，思想上地

参考例句：

• Ideologically, they have many differences. 在思想意识上，他们之间有许多不同之处。
• He has slipped back ideologically. 他思想退步了。

20 impeachment   

n.弹劾；控告；怀疑

参考例句：

• Impeachment is considered a drastic measure in the United States.在美国，弹劾被视为一种非常激烈的措施。
• The verdict resulting from his impeachment destroyed his political career.他遭弹劾后得到的判决毁了他的政治生涯。

21 violation   

n.违反(行为)，违背(行为)，侵犯

参考例句：

• He roared that was a violation of the rules.他大声说，那是违反规则的。
• He was fined 200 dollars for violation of traffic regulation.他因违反交通规则被罚款200美元。

22 amendment   

n.改正，修正，改善，修正案

参考例句：

• The amendment was rejected by 207 voters to 143.这项修正案以207票对143票被否决。
• The Opposition has tabled an amendment to the bill.反对党已经就该议案提交了一项修正条款。

23 statute   

n.成文法，法令，法规；章程，规则，条例

参考例句：

• Protection for the consumer is laid down by statute.保障消费者利益已在法令里作了规定。
• The next section will consider this environmental statute in detail.下一部分将详细论述环境法令的问题。

24 constraints   

强制( constraint的名词复数 )； 限制； 约束

参考例句：

• Data and constraints can easily be changed to test theories. 信息库中的数据和限制条件可以轻易地改变以检验假设。 来自英汉非文学 - 科学史
• What are the constraints that each of these imply for any design? 这每种产品的要求和约束对于设计意味着什么？ 来自About Face 3交互设计精髓