WASHINGTON - In the spring of 1989, Supreme Court Justice
Byron White, once a star running back for the Detroit Lions,
was the guest of the Detroit News at the annual press dinner
of the Gridiron Club. When the paper's publisher bought him
a drink, White casually asked how the planned merger of the
city's two newspapers was going.
"It's before your court," the publisher informed
A few weeks later, the justices voted to take up the case
but without White. He had withdrawn from the deliberations,
apparently concerned that his having just been the unwitting
guest of a party to a case before the court might create an
appearance of partiality.
Around that same time, Chief Justice William H. Rehnquist
and Justice Antonin Scalia got together once a month to play
poker. Sometimes, they were joined by the Reagan administration's
solicitor general, Charles Fried, the government's top lawyer
before the high court. That same spring, Fried strongly urged
the court to overturn the Roe vs. Wade ruling that legalized
abortion. Fried's poker partners participated fully in the
"I was an occasional player. It was very small stakes,"
Fried, a Harvard law professor, said last week. "The
work of the court was not discussed."
As the two incidents show, and as the current controversies
over the outside activities of Scalia and Justice Ruth Bader
Ginsburg underscore, the Supreme Court justices have quite
different views on how they should manage their
social and professional lives so as to avoid creating an appearance
Some, like the late White and Justice John Paul Stevens,
have been especially wary of appearing as though they favored
one side or the other in a legal dispute.
Last spring, for example, Stevens debated dropping out of
the pending case on affirmative action because one of his
former clerks, Jeffrey Lehman, was the dean of the University
of Michigan law school.
A white student's challenge to the school's admissions policy
became the test case for the national dispute. The other eight
justices "unanimously and very firmly" insisted
he should stay in the case, Stevens told lawyers at a Chicago
bar meeting last summer.
Stevens, a registered Republican at the time of his appointment,
has been careful to separate himself from partisan and ideological
causes and maintained a reputation for independence and impartiality.
When his colleagues intervened in the 2000 Florida election
dispute to stop the recount and thereby ensure that Republican
George W. Bush would win the White House, Stevens worried
in dissent that the ultimate loser would be the court's standing
as "an impartial guardian of the rule of law."
But others reject what they see as a hyper sensitivity over
potential conflicts of interests. They stress that justices
have friends who are lawyers and government officials, and
insist that those friendships do not prevent a justice from
deciding legal questions fairly.
Harvard's Fried dismissed the concerns over Justice Scalia's
duck hunting trip with Vice President Dick Cheney as "utter
garbage. It is contemptible, election year garbage,"
"Steve Breyer is one of my best friends, and he votes
against me every time I appear in court. Washington is a town
of government people, and it is stupid to say that if they
sit together at dinner, it raises some sort of conflict."
The justices are quick to say that they always prefer not
to have to withdraw from a pending case simply to maintain
the appearance of impartiality.
Stevens' decision not to step aside in the affirmative action
case proved crucial to the outcome. The Michigan policy prevailed
on a 5 4 vote, with Stevens in the majority.
White's recusal in the Detroit newspapers case proved crucial,
too and it carried an ironic twist. The justices split 4 4
in the case, which cleared the way for the newspaper merger
to go forward.
White had been a strong defender of the antitrust laws and
a likely ally of those who were challenging the merger. "The
effect of his recusal was that we lost," said William
Schultz, a Washington lawyer who represented the union
As Scalia and Ginsburg have said recently, the justices
frown upon recusals because of the likelihood it will create
an evenly divided court. "There is no one to replace
us," Ginsburg said in response to questions about her
involvement with the NOW Legal Defense Fund.
Experts in legal ethics say the better way to maintain impartiality
and its appearance is to avoid the conflicts in the first
"First and foremost, you should avoid putting yourself
in situations where you need to consider disqualification,"
said retired Los Angeles Judge David Rothman, the author of
California's handbook on judicial ethics.
"The job of a judge or justice is to honestly decide
extraordinarily important cases that come before the court.
The job description does not include giving speeches and taking
trips with those who have business before the court."
"Good judicial ethics is often just good judgment and
common sense," said Chicago attorney Robert P. Cummins,
who formerly headed the Illinois Board of Judicial Inquiry.
"A judge ought to avoid participating in activities that
the minds of a reasonable person would create the perception
that the judge would be influenced in favor of that organization
or that person."
He said Scalia's hunting trip with Cheney and Ginsburg's
loaning her name and presence to an annual lecture co sponsored
by the NOW Legal Defense "create an appearance problem,"
Cummins said. "I don't see how they got involved in those
things. It may be there is an attitude of elitism on that
Unlike the justices of the Supreme Court, judges elsewhere
in the nation need not rely on their good judgment alone in
deciding what behavior might appear impartial.
All 50 states have a code of conduct for judges and a state
board that oversees their actions. These boards regularly
publish advisory opinions to guide judges when potential ethical
For example, "A judge should not participate in the
activities of any organization which is or may be involved
in litigation before the court," the California board
said in one advisory opinion. "Likewise, judges should
participate in the activities of organizations which publicly
promote highly controversial positions."
If a judge is uncertain, these state boards have experts
who answer questions and give advice.
Like their state counterparts, federal judges on the trial
courts and appellate courts operate under a code of conduct.
However, the justices have refused to adopt the code and have
said it is not binding on them.
"It makes absolutely no sense to me that the Supreme
Court is exempted from the code of judicial conduct,"
said Doug Kendall, executive director of the Community Rights
Counsel, a Washington based group that monitors the behavior
Besides the codes and guidelines, state and federal judges
can be rebuked if their impartiality comes under challenge.
On occasion, the judge is the last person to realize his fairness
might be in doubt.
In 1995, after the deadly bombing that destroyed the federal
building in Oklahoma City, the federal judge whose courthouse
was next door and who knew victims of the attack fought to
stay on the case of Timothy J. McVeigh, the
accused bomber, even after the trial was moved to Denver.
Eventually, the U.S. court of appeals in Denver ruled he
must step aside. "A reasonable person could not help
but harbor doubts about the impartiality of Judge [Wayne]
Alley," the appellate court said.
But the Supreme Court has continued to insist that the individual
justices decide for themselves whether their impartiality
"might reasonably be questioned."
"They're in a unique situation. When a justice's impartiality
is called into question, the decision on what to do is assigned
to the justice whose judgment has been cast into doubt. And
there's no review, no appeal," said Northwestern University
law professor Steven Lubet.
That process was on display last week.
After learning from The Times about Scalia's duck hunting
trip with Cheney, lawyers for the Sierra Club filed a motion
with the court urging that the Scalia withdraw from the pending
case of Richard B. Cheney vs. U.S. District Court.
But the full court referred the motion to Justice Scalia.
And he, in turn, found no problem with his actions. "Since
I do not believe my impartiality can reasonably be questioned,
I do not think it would be proper for me to recuse,"
he announced Thursday.
Professor Lubet says the high court has interpreted a federal
disqualification statute adopted in 1974 in a way that renders
it meaningless. "The whole purpose of the statute was
to set rules and not leave it to the discretion of
individual justices. But they are interpreting it as though
it leaves all of the discretion to the individual justice,"
The new law grew out of an incident in 1972 involving newly
named Justice Rehnquist. As a Justice Department lawyer in
the Nixon administration, he had defended on Capitol Hill
the Army's policy of spying on civilians and Vietnam War protesters.
But civil rights lawyers challenged the spying as an unconstitutional
infringement on peaceful protests. By the time that case reached
the Supreme Court, Rehnquist had assumed his place as the
justice. Rehnquist refused to recuse himself, and he cast
the deciding vote in a 5 4 decision that killed the lawsuit.
Two years later, Congress expanded the law governing judicial
disqualification to include the Supreme Court. It states that
any judge or justice "shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned."
Prior to 1974, justices often socialized with the president
and his top advisors. As Scalia pointed out in his memo Thursday,
Justices Robert H. Jackson and William O. Douglas played poker
on the second floor of the White
House with President Franklin D. Roosevelt. In 1963, Justice
White went skiing in Colorado with Atty. Gen. Robert F. Kennedy,
even though the high court was about to hear two cases in
which Kennedy was named.
"I see nothing wrong about Justice White's and Justice
Jackson's socializing including vacationing and accepting
rides with their friends," Scalia wrote.
But experts who track the ethics standards point out that
these cozy relationships between justices and presidents came
before the 1974 law. In the decades since then, the court
has increasingly become the place where some of
the nation's most contentious social and cultural disputes
"The justices have a special and unique responsibility
in our society," Cummins said. "And sometimes, that
means they have may to give up a certain number of the rights
and privileges of other citizens."