James Sample has posted this draft on SSRN (Georgetown Journal of Legal Ethics). Here is the abstract:
For Justices of the U.S. Supreme Court, controversies pitting personal conflicts — whether actual or merely alleged — against the constitutional commitment to the rule of law increasingly form the basis of a caustic and circular national dialogue that generates substantially more heat than light. While the profile of these controversies is undoubtedly waxing, the underlying tensions stretch back at least to Marbury v. Madison.
For all its seminal import, in Marbury, Chief Justice John Marshall adjudicated a case involving the validity of judicial commissions Marshall had himself signed and sealed. Equally remarkably, one of those judicial commissions belonged to Marshall’s own brother James.
In the centuries since, issues of actual and/or alleged Supreme Court conflicts have colored the context of landmark decisions, as well as the legacies of jurisprudential giants. Exploring many of the most compelling and controversial recusal sagas in the Court’s history, this Article trains attention on the factually-intensive real-world relationships that Supreme Court Justices have with issues and individuals. In today’s statutory disqualification terminology, these relationships fall — if anywhere — solely into the 28 U.S.C. § 455 nebulous catch-all provision in which a judge must disqualify himself or herself whenever their impartiality “might reasonably be questioned.”
The study yields a layered picture that is rich in historical imagery, anecdote, and analytically-critical context. In this respect, the Article includes, but is not limited to, treatments of the midnight Justices in Marbury; the Steel Seizure case and the “damned fool” whom Truman felt was the “biggest mistake he had made” as President; Thurgood Marshall’s long arc with the NAACP; perhaps the best-known duck-hunting trip of all time; Justice O’Connor’s election night outburst preceding Bush v. Gore; profound matters of issue identification involving Justices Ginsburg and Breyer; and finally the controversies surrounding the Patient Protection and Affordable Care Act, including the undisclosed income related to Virginia Thomas’s work opposing the health care legislation and Justice Kagan’s ill-advised e-mails including the memorable “I hear they have the votes, Larry!!”
The exploration serves as a navigational guide to the difficult but necessary task of separating the shrill cries from the serious constitutional concern of genuine Supreme Court conflict. The Article situates the analysis of Supreme Court disqualification practice, and particularly the circumstances involving Justices Thomas and Kagan vis-a`-vis the Patient Protection and Affordable Care Act, within the broader, enduring legal dichotomy of rules as opposed to standards. Pointing to Chief Justice Roberts’s recent, relatively bare assertion that when it comes to disqualification, the Supreme Court is simply constitution- ally and pragmatically different, the Article asserts that while the Chief Justice’s argument is neither emotionally nor intellectually satisfying, in an imperfect world, his argument is also entirely correct.
Finally, and in light of constitutional structure and historical norms, the Article asserts that it was entirely appropriate for both Justices Thomas and Kagan not to recuse themselves from the legal challenge to the Affordable Care Act. That said, the Article asserts that the controversies represent an important teachable moment — a moment in which the justices and the academy alike have the opportunity to elevate, rather than further denigrate, the national dialogue pertaining to high court conflicts.
James writes some of today’s most important work on judicial elections and judicial recusal. I’m looking forward to reading this.