John,

It’s becoming increasingly common for Supreme Court justices to refuse to recuse themselves from cases, pointing to their “duty to sit,” which is basically their obligation to hear cases.

I found this incredibly problematic and frankly arrogant. So when I testified before Congress, I called the justices out.

If the justices were serious about this duty to sit then they would, of their own accord, enact significantly preventative measures to eliminate conflicts before they arise.

I’ll explain this more in a moment, but I want to make a request first.

A federal statute, 18 USC 455, mandates recusal for members of the Supreme Court and other federal judges in specific situations, for example, if a justice or judge served as counsel in the matter, or has a "substantial" interest in the outcome of the case. It also mandates recusal in other circumstances when the impartiality of a justice or judge might reasonably be questioned.

That’s a reasonable ethical standard, but the Supreme Court has significantly limited the use of that standard, by adopting the so-called "duty to sit" doctrine.

The “duty to sit” doctrine favors participation of the whole court, regardless of potential controversy and questions of bias, and leaves recusal decisions up to individual justices. This not only produces random and contradictory results, but also raises concerns about whether the judicial process is being twisted and distorted to favor their own personal agenda.

The “duty to sit” cannot and should not override the justices’ higher ethical obligation and their solemn oath to “faithfully and impartially discharge and perform” their duties.

Thank you,

Donald Sherman
Executive Vice President and Chief Counsel
CREW