Would a Trump-nominated Supreme Court justice be expected to recuse themselves from a Trump case?

Question

As of Oct 21, 2022, the January 6 Committee has issued a subpoena to former president Trump, setting up the potential for a case against Trump to end up in front of the Supreme Court. I spent awhile trying to find precedent on what would happen were a Trump-nominated justice to be faced with a case against their nominator, but unsurprisingly the strangeness of the situation seems to surpass my ability to spend endless amounts of time searching the internet, and my lawyer friends don't seem to know either.

Would it be considered a conflict of interest for a Supreme Court justice nominated by Trump to hear a case against Trump, and would said justice be expected to recuse themselves?

the committee is the senate, right? how would that case end in SCOTUS? — Trish, Oct 21 '22 at 19:17
@Teish The Jan 6 Committee is a House committee, not the whole House, much less the Senate. If Trump sues to quash a subpoena, as he may well do, any decision could be appealed, and such an appeal could wind up before the Supreme Court. — David Siegel, Oct 21 '22 at 19:55
@DavidSiegel ok, that might work, but I would more expect that SCOTUS might just say "we don't hear that case..." — Trish, Oct 21 '22 at 19:59
@Trish They have heard various other recent cases to which Trump was a party, so I doubt they would decline nit on that ground alone. Of course they only hear a small number of cases each term. — David Siegel, Oct 21 '22 at 20:03
@DavidSiegel in addition, they've recently declined to hear some Trump cases, and when justices recuse themselves from deliberations about whether to hear a case, this is noted in the order. I haven't seen any of these orders, but I imagine that any recusals would have been reported in the press. — phoog, Oct 21 '22 at 20:24
As if the Supreme Court has any standard for recusal: "Conservative groups say Kagan should sit out the case because she led the office that began preparing the Obama administration’s healthcare defense before she was tapped for the high court." — Andrew Henle, Oct 22 '22 at 14:10
@AndrewHenle Oh, yeah. Politics rarely cares what the law or precedent is. Could you imagine the cascade of crazy if judges recused themselves everytime a political topic associated with their nominating party came before them? — , Oct 22 '22 at 16:29
Different but somewhat related in Politics SE: If a US supreme court nominee is selected by political opportunism, does the nominee ignoring that demonstrate insufficient ethics for the job? — uhoh, Oct 23 '22 at 05:26

score 34 · Answer 1 · edited Oct 24 '22 at 21:31

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No, That Would not be treated as a Conflict of Interest

There is precedent. The four Justices appointed by President Nixon did not recuse themselves on cases involving Nixon, including subpoenas to turn over White House tapes recording conversations involving Nixon and his close advisors. Indeed it was a decision against him in such a case that apparently was the final thing that caused Nixon to resign.

It is worth noting that there is no binding law or rule of practice specifying when a Justice must recuse, which is different than the rule for all other Federal judges. Congress could pass a law imposing a mandatory code of ethics on the Justices, but has not done so.

edited Oct 24 '22 at 21:31

Heddy

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answered Oct 21 '22 at 19:38

David Siegel

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I forgot Nixon! Great example, and interesting noting that "there is no binding law or rule of practice specifying when a Justice must recuse" – TheEnvironmentalist Oct 21 '22 at 19:42
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"no binding law or rule of practice" for justices: there are however for judges, and I'm fairly sure that those rules don't include having been appointed to the bench by someone as grounds for recusal. – phoog Oct 21 '22 at 20:26
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I don’t believe Congress could pass such a law - they don’t have the power to regulate SCOTUS – Dale M Oct 22 '22 at 02:52
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@Dale M I think they do. They can regulate the President in various ways. They can impeach and remove Justices. They set the size of the Court. They set the court budget. In they past they have assigned specific Justices to specific circuits. They can remove classes of cases from the Court's jurisdiction. They set the Justices' pay. They created the office of Reporter of the Court. But since Congress has never passed such a law, there has never been a test of such power. – David Siegel Oct 22 '22 at 03:07
@DaleM Congress has impeached one Supreme Court justice (Samuel Chase). The power comes from the "good Behaviour" clause of the Constitution, which specifically says it applies to "both of the supreme and inferior Courts". Thus, defining what "good behavior" means to the Supreme Court follows from the same power as applies to the Federal courts. – user71659 Oct 22 '22 at 06:27
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@user71659 Aldo, ongress came close to impeaching William Douglass, and Abe Fortas would have been impeached and removed had he not resigned first. – David Siegel Oct 22 '22 at 06:36
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I upvoted this but disagree with the last line, I mean technically they could pass it but it would almost certainly be struck down as unconstitutional. – deep64blue Oct 23 '22 at 01:44
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@deep64blue To the best of my knowledge there is no case clearly on point. There is certainty no explicit language in the Constitution either way. I think such a law would be within Congress' power, but I can't cite clear case law on it. In any case, it seems quite unlikely that Congress will pass such a law, and if they don't it will never come to a court decision. – David Siegel Oct 23 '22 at 01:52

score 20 · Answer 2 · answered Oct 21 '22 at 19:45

There is no hard law (statutory, constitutional or SCOTUS holding) regarding "conflict of interest" for Supreme Court justices. Justices have typically recused themselves in case of financial interest, for example owning shares of a plaintiff / defendant company. Also, if a justice was involved in lower-level proceedings (e.g. circuit court appeal), they will step aside. If a justice is a defendant in a case, they (tend to) recuse themselves – the one relevant case that I know is Jaffe v. Roberts et al. where somebody sued all of the justices except Gorsuch, who was the new kid on the block, so the lower court judgment was affirmed by default. Justices have exercised the option of recusing themselves because of other connections to a party, such as a close friend being a party, a party being one's son's educational institution, a party having testified against th justice at a confirmation hearing. There is a case (Jewell Ridge Coal Corp. v. United Mine Workers of America) where Hugo Black participated, but a former law partner of Black's argued for the winning side. This is one of the controversial cases of non-recusal.

The ethical guidelines are not bright except in cases of financial interest, prior involvement, or being an actual party. No SCOTUS justice has recused themselves because the administration which nominated them is also being sued, and it would not be expected that a justice nominated by a president would recuse themselves from hearing. In Clinton v. Jones, Ruth Bader Ginsburg and Stephen Breyer who were Clinton appointees participated in the decision, and voted against Clinton. In US v. Nixon, Rehnquist recused himself because of association with Watergate defendants, and not because Nixon nominated him. Lewis Powell, nominated by Nixon, did not recuse himself and voted against Nixon, idem Harry Blackmun.

Comments are not for extended discussion; this conversation has been moved to chat. — feetwet, Oct 23 '22 at 17:26

Would a Trump-nominated Supreme Court justice be expected to recuse themselves from a Trump case?

2 Answers2

No, That Would not be treated as a Conflict of Interest