What about this constitutional argument from the Chief’s annual report?
The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.
That sounds a heck-of-a-lot like an advisory opinion! He is opining on how to construe Article III, and what the powers of Congress are to set rules to govern “other body,” including the Supreme Court!
And he’s not just opining on what the law is. He’s telling Congress what they can’t do. Don’t even think about regulating the Court, it’s unconstitutional!
This passage may also be somewhat of an advisory opinion, offering a construction of a statute:
The governing statute, which is set out in Title 28, Section 455, of the United States Code, states, as a general principle, that a judge shall recuse in any case in which the judge’s impartiality might reasonably be questioned. That objective standard focuses the recusal inquiry on the perspective of a reasonable person who is knowledgeable about the legal process and familiar with the relevant facts. Section 455 also identifies a number of more specific circumstances when a judge must recuse
As told in Jeff Shesol’s Supreme Power (which I just finished)–in a somewhat astounding move–Chief Justice Hughes, joined by Justices Brandeis and Van Devanter, sent a letter to Senator Wheeler from Montana opining on the constitutionality of the court-packing plan, whereby the Court would be split into different divisions. This letter was unsolicited, but mean to stem the tide of FDR’s plans. Hughes made a constitutional argument along the same lines that since the Constitution only created *one* Court, it could not be split up, assigning older Justices to a second-tier. Hughes did not even seek the permission of any of the other Justices before submitting the letter. They were furious at this advisory opinion, though they all agreed with the contents.
There are a number of parallels between the Court’s fight during the New Deal and the upcoming battle over the mandat. Roberts, like Hughes before him, is asserting the supremacy of the Supreme Court.
The process within the Supreme Court is similar. Like lower court judges, the individual Justices decide for themselves whether recusal is warranted under Section 455. They may consider recusal in response to a request from a party in a pending case, or on their own initiative. They may also examine precedent and scholarly publications, seek advice from the Court’s Legal Office, consult colleagues, and even seek counsel from the Committee on Codes of Conduct. There is only one major difference in the recusal process: There is no higher court to review a Justice’s decision not to recuse in a particular case. This is a consequence of the Constitution’s command that there be only “one supreme Court.” The Justices serve on the Nation’s court of last resort.
Although a Justice’s process for considering recusal is similar to that of the lower court judges, the Justice must consider an important factor that is not present in the lower courts. Lower court judges can freely substitute for one another. If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place. But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.
I reckon that all of the Justices agreed with Roberts’s message, but I wonder if they would all have joined this report (perhaps Breyer will issue a dissent, like he did with the door-closing-memo from last year).
Update: Ian Milheinser at Think Progress has this to say:
And he adds that “the limits of Congress’s power to require recusal have never been tested.” Roberts never comes out and calls congressional regulation of the Supreme Court unconstitutional — indeed, he notes that his “judicial responsibilities preclude [him] from commenting on any ongoing debates about particular issues or the constitutionality of any enacted legislation or pending proposals.” Nevertheless, it is tough not to read his report as a warning that his Court may be prepared to nullify any attempt to tighten the ethical rules guiding its members.