Supreme Court justices want the public to know that they really, truly get along swimmingly with each other, no matter how quarrelsome they appear to be in published opinions.
The latest episode of performative collegiality featured Justices Sonia Sotomayor and Amy Coney Barrett in a series of joint appearances, where they insisted that their profound disagreements about constitutional law do not affect their daily interactions.
“When we disagree, our pens are sharp,” explained Sotomayor, “but on a personal level, we never translate that into our relationships with one another.”
Other justices, including Elena Kagan, Neil Gorsuch, the recently retired Stephen Breyer and the late justices Antonin Scalia and Ruth Bader Ginsburg, have reassured the public that they, too, can remain friends despite their ideological differences.
But why should anyone care about the justices’ interpersonal relationships? When Supreme Court decisions affect millions of lives, sometimes for better and often for worse, what does it matter if they routinely patch it up afterward?
No parent grieving a child killed in the latest school shooting will be consoled because the justices still enjoy lunch together while effective gun control has been made nearly impossible. No woman forced to endure an ectopic pregnancy can take comfort in the justices’ bonhomie following the demise of Roe v. Wade.
The justices no doubt believe they are modeling good behavior, in contrast to the rancor afflicting Congress. And it is indeed a modest virtue to disagree without acrimony. Justices who get along personally may occasionally be more open to each other’s suggestions, and perhaps more receptive to pleas for unanimity. Nonetheless, many justifiably aggrieved Americans surely find the justices’ declarations of mutual admiration pointlessly self-indulgent at best.
The justices’ unwavering camaraderie also results in deference to each other’s ethical choices, even when a colleague has engaged in misconduct. This problem arises most clearly regarding recusal, where the court has adhered to a “historic practice” of assigning disqualification decisions exclusively to the affected justice, as is now enshrined in the commentary to the court’s new Code of Conduct.
No matter how blatant the conflict of interest, “individual Justices, rather than the Court, decide recusal issues.” The court itself will do nothing and say nothing when a colleague wrongly decides to participate in a case.
A glaring example is Justice Clarence Thomas’s insistence on sitting in cases growing out of the Jan. 6, 2021, Capitol insurrection, despite his wife’s well-known involvement in former President Trump’s attempts to subvert the outcome of the 2020 election. In one such case, Thomas recorded the only dissent, as the other justices rejected the application for review.
There has been only one departure from this pattern, and it is a telling one. In 2022, Thomas disqualified himself, in an insurrection-related appeal by John Eastman, an author of the fake electors plan to keep Trump in office. Although Thomas did not explain his recusal, it is widely known that Eastman is his former law clerk, family friend and confidant of his wife, Virginia.
Outrageously, however, Thomas has not disqualified himself in special prosecutor Jack Smith’s election fraud case against Trump, in which Eastman is included as an unindicted co-conspirator and seems likely to be charged himself.
Despite calls for Thomas’s recusal from Democrats in both the House and Senate, Thomas participated fully when the court accepted Trump’s petition to review his claim of absolute immunity. Although hardly anyone thinks Trump’s claim can succeed on the merits, Thomas may have cast the deciding vote to accept the case, substantially delaying the prosecution much to the former president’s advantage.
The eight other justices have graciously stayed silent while Thomas remains in a case implicating both his wife and his protégé. Moreover, they have not only condoned his misconduct, they have actually enabled it by including uniquely hands-off provisions in their new Code of Conduct.
Like the judicial ethics rules adopted by the lower federal courts, and in every state, the Supreme Court Code of Conduct is based on the American Bar Association’s Model Code of Judicial Conduct.
Unlike every other code, however, the Supreme Court’s version attenuates its conflict of interest provision by specifically providing that “The rule of necessity may override the rule of disqualification.” Other courts have applied a common law “rule of necessity” in a few extremely narrow circumstances, but the Supreme Court’s definition of necessity is so expansive as to all but negate any underlying recusal obligation.
According to the code’s appended commentary, the disqualification “of even one Justice may undermine ‘the fruitful interchange of minds which is indispensable’ to the Court’s decision-making process,” which may prevent “the Court from providing a uniform national rule of decision on an important issue.”
Thus, any single justice is free to disregard a conflict of interest, so long as he or she believes their participation is “indispensable” to the resolution of “an important issue.” And because “individual Justices, rather than the Court, decide recusal issues,” the upshot is that a conflicted justice is most likely to sit, and potentially cast the deciding vote, in the most important cases, which appears to be exactly what is happening in Trump’s pending immunity appeal.
No amount of courtesy, affability, relationship building or overall good feeling can justify the Supreme Court’s quiescence in the face of Thomas’s flagrant misconduct. Preserving friendships can have benefits, but not at the cost of impartial justice.
Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.