The Chief Justice Defends His Own

They may be known by their 5-4 decisions, but when it comes to outside criticism, the nine justices of the Supreme Court close ranks. Chief Justice John Roberts made headlines this weekend by defending his colleagues’ recusal choices, implicitly decisions by Justice Elena Kagan and Justice Clarence Thomas to participate in the health-care litigation. See story.

Roberts’s endorsement of his fellow justices came in the annual report on the federal judiciary, a typically dreary document that rarely draws much press or public attention. (I do remember, however, Chief Justice William Rehnquist making similar headlines in the late 1990s when he blasted the Senate for delaying judicial nominations.)

In his report released on New Year’s Eve, Roberts wrote, “I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

On the broader subject of judicial ethics, Roberts warned critics they might not know what they’re talking about. He referred to “misconceptions” about the Supreme Court and its ethical guidelines. He insisted justices abide by a federal code of conduct that officially covers only lower court judges.

Roberts also reminded Congress that its authority over some judicial activity has never been deemed constitutional: “As in the case of financial reporting and gift requirements,” Roberts wrote, “the limits of Congress’s power to require recusal have never been tested.” Roberts said justices and judges follow those rules. But he wanted it on the record that, on the subject of ethics, Congress might not even have the power to tell them what to do.