The Law of Disqualification and Problems with the Supreme Court Code of Conduct

In this Article, we analyze the federal disqualification statute applicable to federal judges, magistrates, and Justices of the Supreme Court as compared to the disqualification provisions of the United States Supreme Court Code of Conduct and detail the ways in which the standards contained within the Code are contrary to law and history. To provide proper context, we examine the history, case law, and statutory framework that have created the current standards of judicial disqualification for all Article III judges and Justices. We demonstrate that the Court is bound to apply disqualification procedures in accordance with the United States Constitution, common law, and existing statutes. Our analysis also shows that the Court, in its Code of Conduct, has incorrectly claimed that the common law concepts of the “duty to sit” and the “rule of necessity” act as exceptions to statutorily imposed disqualification duties when in fact neither concept factors into the analysis of whether a Justice must disqualify themselves from considering a case. Finally, we propose legislative changes to remove any possible ambiguity regarding the requirements of the law of disqualification.