WASHINGTON – Supreme Court Justice Stephen Breyer waded into a recent debate over ethics on the nation's highest court Saturday, defending the way he and his colleagues decide whether to remove themselves from considering a case.
In recent months lawmakers and interest groups have called for two of the Supreme Court's nine justices remove themselves from the upcoming arguments over President Barack Obama's health care law for ethical reasons.
Republicans want Justice Elena Kagan to recuse herself from the case because of her work as solicitor general in the Obama administration. Democrats, meanwhile, say Justice Clarence Thomas should not consider the case because of his wife's work with groups that opposed the health care overhaul.
Supreme Court Chief Justice John Roberts defended his colleagues' ethical practices in late December in an annual year-end report to Congress. He wrote that justices voluntarily follow the same code of conduct required of lower court judges. And he said he has "complete confidence" in his colleagues' ability to decide whether to withdraw from considering a case.
Speaking at a conference of law school professors being held in Washington, Breyer also defended the court's ethical practices in response to a question.
"There's a code of ethics. It's 24 volumes. It's in my office. It's up in the library. Before I have any case that involves ethics I go read it and see what's there," he said, adding that the code and two statutes guide him in the same way they do any lower court judge.
"We are bound. We're acting as if we're bound," he said of the code of conduct.
But Breyer, who was appointed to the Supreme Court by President Bill Clinton in 1994, acknowledged there is a difference in the way a lower court judge and a Supreme Court justice decides to sit out a case. When he was a judge on the U.S. Court of Appeals for the First Circuit, he said, he'd recuse himself if there was a close ethical question of whether he should hear the case.
"Why not? I hate to admit it, but judges are fungible. If they don't have me they can get somebody else. Who cares?," Breyer said of that time.
Now, however, as a Supreme Court justice, whether he participates in a case or not could change the result because no one can replace him, he said.
"That means I have to take with absolute seriousness the obligation to sit as well as the obligation not to sit," he said, echoing sentiments also expressed by the Chief Justice in his report.
When he has a question about a case, he said he looks at the code of ethics, reads the statute and then calls an ethics professor for advice.
"All my colleagues try to do the same thing, so I think this is a non-issue," he said.