Yes, there is a federal recusal law for Supreme Court justices

On July 1, the Supreme Court ruled 6-3, that a president has absolute immunity for official acts but no immunity for unofficial acts. The justices ordered lower courts to figure out precisely how to apply the decision to former President Donald Trump’s case on his plotting to overturn the 2020 election results.

The outcome likely means additional delays before Trump could face trial in the case brought by special counsel Jack Smith.

A few days earlier, on June 28, the Supreme Court issued another ruling that makes it harder to charge Capitol riot defendants with obstruction. The justices ruled 6-3 that the charge of obstructing an official proceeding must include proof that defendants tried to tamper with or destroy documents. Only some of the people who attacked the Capitol on Jan. 6, 2021 fall into that category.

Some people have argued that two of the justices – Clarence Thomas and Samuel Alito – should not have been involved in the cases at all, and should have recused themselves.

Thomas’s wife Ginni has falsely claimed the 2020 election was stolen, and Congress is investigating her for potentially being involved in attempts to overturn it.

Alito has been under fire since the New York Times revealed that a pair of flags flown by January 6th insurrectionists were also flown at his homes, not long after the attack on the capitol. Alito says his wife flew the flags and denied supporting the insurrection.

Alito also denied being in violation of the Supreme Court’s new ethics code, which says, “A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned.”

But because the ethics code has no enforcement mechanism, meaning it doesn’t give anyone the power to punish those who violate it, it’s up to the justices to self-police. In other words, Alito gets to decide for himself whether or not he’s broken the code.

But some people have argued that beyond the ethics code, there’s a federal law requiring recusal in certain cases that applies to the Supreme Court.

THE QUESTION

Is there a federal recusal law for Supreme Court justices?

THE SOURCES

• U.S. Supreme Court
• Congressional Research Service
• Fix the Court, a non-profit advocacy group
• LegalMatch

THE ANSWER

Yes, there is a federal recusal law for Supreme Court justices.

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WHAT WE FOUND

United States Code says, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Since the Supreme Court is the only part of the federal legal system that has “justices,” it’s clear this provision explicitly applies to them.

But the law is not a criminal law, meaning violating it can’t result in a judge being charged with a crime and sent to jail.

Rather, a judge who fails to recuse themselves in violation of this law might get reprimanded or suspended by higher-ranking judges. And their rulings in the case in question could be overturned.

However, Supreme Court justices don’t have any higher-ranking judges, or anyone who can overturn their rulings. The chief justice’s powers are mostly clerical, and he can’t discipline other justices or single-handedly throw out rulings.

Which means – as with the ethics code – the federal law relies upon individual justices to self-police.

They often do that. According to a database of recusals tracked by Fix the Court, justices have recused themselves from a case more than a hundred times this term alone, with every justice recusing themself at least five times.

The vast majority of those recusals occur early on, when the court is merely deciding whether or not to take a particular case. Common reasons for recusal include a justice holding stock in a company that could be directly affected by the case, a justice having previously worked or ruled on the case in their career as a lawyer or lower-court judge, or a justice being named as a party in the case. Alito has recused himself most often this term – 23 times, most commonly citing stock ownership.

Rep. Jamie Raskin (D-Md.) argued in an op-ed that in instances where justices do not recuse themselves, the other justices could vote to disqualify them from the case, citing the federal recusal law. He argued the other seven justices should vote to exclude Alito and Thomas from any cases related to the 2020 election.

It’s unclear how or whether that would work; VERIFY found no evidence it’s ever happened before.

The only other way to take a justice off a case would be for Congress to impeach them and remove them from the court entirely. That would take a majority vote in the House and a two-thirds vote in the Senate, which has never happened in the court’s history.

The Associated Press contributed to this report.

This story is also available in Spanish / Lee este artículo también en español: Sí, hay una ley federal de recusación para los jueces de la Corte Suprema