There is no more valuable America citizen in politics at the moment than Rep. Jamie Raskin, Democrat of Maryland. Leave aside that he stood to his post through unimaginable personal tragedy and then through cancer treatment. Raskin is a ferocious fighter for the whiskey hours of the poker game. He also knows more about the Constitution than, say, either Justice Clarence Thomas or Justice Sam Alito. And now Jamie Raskin has made them his personal cause. From The New York Times:

Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards—no binding ethics code or process outside of personal reflection. Each justice decides for him- or herself whether he or she can be impartial. Of course, Justices Alito and Thomas could choose to recuse themselves—wouldn’t that be nice? But begging them to do the right thing misses a far more effective course of action.

Please. Do go on.

The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455. The Constitution has come into play in several recent Supreme Court decisions striking down rulings by stubborn judges in lower courts whose political impartiality has been reasonably questioned but who threw caution to the wind to hear a case anyway. This statute requires potentially biased judges throughout the federal system to recuse themselves at the start of the process to avoid judicial unfairness and embarrassing controversies and reversals.

I could be very glib here and point out that all the available evidence indicates that you’d need the Jaws of Life to pry Garland off the dime. You’d likely have a better shot at convincing Thomas and/or Alito to ask Harlan Crow for a nice long summer vacation. Nevertheless, the logic behind Raskin’s idea is impeccable, and its constitutional bona fides seem to be solid. There is one snag, however: The other justices have to stand to their tackle as stubbornly as Raskin has stood to his.

This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command. When the arguments are properly before the court, Chief Justice John Roberts and Associate Justices Amy Coney Barrett, Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan, Brett Kavanaugh and Sonia Sotomayor will have both a constitutional obligation and a statutory obligation to enforce recusal standards.

Raskin’s point is that the applicable statutes at least theoretically leave no choice for Roberts and the rest of them. They have to take up recusal, and, it appears, the other seven have to enforce the statutory demands for recusal. Raskin hangs his argument on the decision in Williams v. Pennsylvania, a 2016 decision written by then-justice Anthony Kennedy. In Kennedy’s opinion, Raskin finds a three-part solution to the problem of the two renegade justices. First, Kennedy ruled that the standard for recusal had to be objective. It can’t be based on what the justice in question believes their standard to be. Second, Kennedy referred the Court to the American Bar Association’s reliance on James Madison’s doctrine that “no man may be a judge in his own case.” And third, the failure of a biased judge to recuse himself is not what the law calls a “harmless error.” Raskin concludes:

Courts generally have found that any reasonable doubts about a judge’s partiality must be resolved in favor of recusal. A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” While recognizing that the “challenged judge enjoys a margin of discretion,” the courts have repeatedly held that “doubts ordinarily ought to be resolved in favor of recusal.” After all, the reputation of the whole tribunal and public confidence in the judiciary are both on the line.

Raskin puts the seven other justices squarely in the skillet. If John Roberts leads this Court, here’s (another) chance for him to provide proof that his is not the emptiest robe to sit in his chair.

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Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976. 

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