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 brewing controversy 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 homage to that law, but do not apply it strictly 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 makeup 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 consensus 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 fully constituted court for a given case, or it's more important for them to make an ethical 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 ethics 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 binding law on the books that tells justices when to recuse. And they have all consistently treated it as advisory. Several justices of all ideological 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 confirmation, happened for Ketanji Brown Jackson. There were calls for her to recuse herself in the case that she ultimately has already decided 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 legitimacy is unquestionably the thing that is in most peril as we become more ideologically 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 impeachment. And how profound of a violation 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 amendment 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 statute. 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 constraints on the court that are enforceable that don't currently exist.
FADEL: That's Louis Virelli, a professor at Stetson University College of Law.
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