In Nevada Comm’n on Ethics v. Carrigan (Instant Analysis here), the Supreme Court, in holding that a Nevada Legislature recusal law was not unconstitutional, looked to recusal rules applied to the judiciary. Is this fair to compare ethic rules for legislators and ethics rules for Judges?

Justice Kennedy doesn’t think so.

The Court has held that due process may require recusal in the context of certain judicial determinations, see Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009); but as the foregoing indicates, it is not at all clear that a statute of this breadth can be enacted to extend principles of judicial impartiality to a quite different context. The differences between the role of political bodies in formulating and enforcing public policy, on the one hand, and the role of courts in adjudicating individual disputes according to law, on the other, see ante, at 6, may call for a different understanding of the responsibilities attendant upon holders of those respective offices and of the legitimate restrictions that may be imposed upon them.

Wait? Courts don’t formulate and enforce public policy? OK, realism aside I think Kennedy has a point.

Justice Scalia didn’t have much of a reply here.

There are of course differences between a legislator’s vote and a judge’s, and thus between legislative and judicial recusal rules; nevertheless, there do not appear to have been any serious challenges to judicial recusal statutes as having unconstitutionally restricted judges’ First Amendment rights.3

3We have held that restrictions on judges’ speech during elections are a different matter. See Republican Party of Minn. v. White, 536 U. S. 765, 788 (2002) (holding that it violated the First Amendment to prohibit announcement of views on disputed legal and political issuesby candidates for judicial election).

I find Scalia’s reasoning unpersuasive.What challenges to judicial recusal statutes would there even be? Judges aren’t too fond of suing over recusal statutes. Capteron–authored by Kennedy–is probably one of the few cases that actually made it to the Supreme Court.

Most notably, the Supreme Court has a long tradition of not being bound recusal rules, even if statutes applied to recusal of lower court judges. None other than John Marshal chose not to recuse in Marbury v. Madison even though his blunder resulted in the failure to deliver Marbury’s commission! The Surpeme Court, even today is not bound by the same ethical codes as lower court judges.