Chief Justice Roberts Declines the Invitation to a Hanging

Sends a letter to the Senate judiciary committee chairman on the justices’ ‘duty to sit.’

AP/Jacquelyn Martin, pool
Chief Justice Roberts at the Capitol on February 7, 2023. AP/Jacquelyn Martin, pool

We must say we enjoyed Chief Justice Roberts’ letter to Senator Durbin, respectfully declining the chairman’s invitation to appear before the Judiciary Committee to talk about Supreme Court ethics. We’d called Mr. Durbin’s demarche an “invitation to a hanging,” which the Chief Justice seemed to get, though he didn’t put it so bluntly. The part of his letter and accompanying materials  that we liked best was the part where he addressed the “duty to sit.”

We’ve been banging that drum for years, but it was wonderful to see it in a “statement of ethics principles and practices” that the Chief Justice attached to his letter. That statement makes it clear that recusal — or what the statement at one point calls the “rule of disqualification” — is not the overriding ethical rule. There is a countervailing obligation, called the “rule of necessity,” that, the statement notes, “may override the rule of disqualification.” 

This is why the court itself cannot force a justice to recuse himself. If they could, that power could be abused. Instead, “individual justices, rather than the court, decide recusal issues.” Says the statement: “If the full Court or any subset of the Court were to review the recusal decisions of individual justices, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.”

That’s something we aren’t hearing from the organizations — and Democratic politicians — trying to force Justice Clarence Thomas off the court. Chief Justice Roberts doesn’t get into the libels being flung at his most senior colleague. What he sent Mr. Durbin, however, makes clear that the only person who can make recusal decisions for Justice Thomas, in regard to his billionaire buddy Harlan Crow or anyone else, is Justice Thomas. 

Trying to make it otherwise starts to look, as least as we see it, like an ethical violation in and of itself. We don’t buy for one second the notion that any one of the Senate Democrats is animated by a concern in respect of ethics. They’ve addressed none of the issues around recusal in a mature and thoughtful way. They are concerned about individual  cases and are trying to put their thumb on the scales of justice.

This is alluded to only obliquely in the Statement on Ethics Principles and Practices that Chief Justice Roberts sent to Mr. Durbin. The statement — endorsed by all nine Justices — ends with a brief paragraph that begins, “A word is necessary concerning security.” It notes that judges at all levels face “increased threats to personal safety” that are “magnified” in respect of the Supreme Court.

“Recent episodes,” says the statement, “confirm that such dangers are not merely hypothetical.” We take it as a reminder that the Justices are no dummies. They’re onto the game of such senators as, say, Chuck “You have released the whirlwind and you will pay the price” Schumer. Matters concerning  “travel, accommodations, and disclosure may at times have to take into account security guidance,” the Chief Justice concludes in a nice touch.

The New York Sun

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