I believe that opening the door to recusal claims under the Due Process Clause, for an amorphous “probability of bias,” will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts. I hope I am wrong.
— Chief Justice John Roberts
After all, he says, quoting from a 1975 Supreme Court opinion there is a “presumption of honesty and integrity in those serving as adjudicators.” Yes, apparently a heretofore irrebutable one, because all judges take an oath to uphold the Constitution and apply the law impartially, and we trust that they will live up to this promise, paraphrasing, oddly enough, a concurrence by Kennedy in a 2002 case.
But just in case there’s still somehow some doubt that the chief justice might not want to fully canonize judges because they’ve taken the judicial oath, he trots out this from a 1941 Supreme Court opinion.
Proving the point that no one, least of all judges, should be the final arbiters of their own righteousness—or be allowed to set their own standards for recusal.
Roberts’s default mode of operation, it is by now clear—he really does do this often—is to pronounce himself sympathetic to particular goals and aspirations and therefore compelled to oppose interpretations of law that (in this case, clearly) advance the goal. That’s because up is down, left is right, black is white, and turning something upside-down is turning it right-side-up.
So we are treated to the spectacle of the chief justice of our highest court declaring, presumably with a straight face, that a ruling that constitutional due process bars judges who have a glaring conflict of interest from participating in the outcome of the case will diminish the confidence of the American people in the fairness and integrity of their courts.
What the public doesn’t know won’t hurt them, I guess. And what they do know won’t either, because pretenses and legal fictions of the variety that Roberts prefers enhances the confidence of the American people in the fairness and integrity of their courts. At least those American people who’ve had a few at their local bar.
Most of Roberts’s 40 questions are easy to answer. Others are no more difficult to answer than such proverbial legal standards as “reasonableness” that are bedrock foundations of American law.
What Roberts is really concerned about here is not that required recusal for conflict of interest will diminish the confidence of the American people in the fairness and integrity of their courts but instead that it will itself bring our judicial system into what he says is undeserved disrepute, although the facts in
Caperton do raise the possibility that some of the disrepute is deserved. Saint that he is, he nonetheless is not quite forthright here about his true concern.
