The Supreme Court's Credibilty Gap

Three days ago, the New York Times published an editorial entitled "The Court's Recusal Problem." The editors pointed out that justices do not have clear rules for when they recuse themseleves from particular cases, and that the result frequently is an appearance of impropriety, if not actual impropriety. Other federal judges must adhere to (often controversial) rules imposed by Congress, but Supreme Court justices are expected to set and meet their own standards.

Judges don't like rigid rules for recusal, for good reason. In the first place, they can limit judicial independence, placing judges at the mercy of the legislature for the very basis of their power -- jurisdiction. One concern is that strictly-applied rules might encourage judge shopping by attorneys, who would look for legalistic reasons to call forrecusal of judes they don't like. Such rules also imply that judges are incapable of being objective when they have minor involvement with the people coming before them, and judges pride themselves on their objectivity above all else.

But that's the rub. The power of the courts relies almost entirely on the perception (and the reality, of course) of their impartiality. If people believe that judges reach conclusions based on their personal predilections rather than on professional application of principle and law, no one has any reason to obey the courts. Relying on justices to judge their own cases, as it were, undermines that perception (and its corresponding reality.)

For example, it did Justice Scalia and the Court no good when he went duck hunting with Vice President Cheney just before Scalia ruled on a case in which Cheney was a litigant. Of course justices have to be free to have personal relationships with politicians. After all, Scalia lives in Washington and can hardly make himself a recluse. To be as cozy as all that, however, is a problem. Justice Thomas has all kinds of simililar problems because his wife is a conservative lobbyist who argues in public for many of the people Thomas supports in his rulings.

Recusal is therefore just a part of a much bigger problem. The Court's rulings in Bush v. Gore and Citizens United look horrible. Despite all the harrumphing about stare decisis and judicial conservativism, Scalia, Thomas and Roberts -- as well as former Chief Renquist -- have been willing to pitch all precedent in opinions that look suspiciously political. If we trusted the individual members of the Court to be more impartial, we could live with the practice of allowing them to apply their own judgment in matters of recusal. Since we don't trust them in the broader sense, we don't trsut them in the narrower.

That's a big deal. It gets to the very system of government and rule of law on which the Court depends entirely. It would serve us all, and not least the members of the Court, if they would do more to earn our trust