NOW   |  April 21, 2014

When should a SCOTUS judge recuse themselves?

Jonathan Turley discusses the politics of the Supreme Court and if Justice Antonin Scalia should recuse himself from a case on the constitutionality of Massachusetts’ thirty-five foot buffer zone outside of abortion clinics when his wife has been involved with organizations which would be directly affected by the court’s ruling.

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This content comes from Closed Captioning that was broadcast along with this program.

>>> it's rare to hear former supreme court justices speak out. and rarer still for them to say anything controversial. former justice david souter and sandra day o'connor raised eyebrows when they called out the ignorance of the american public and this week it was former justice john paul stevens ' turn when asked if the justice should consider the giant oval when they retire.

>> do you think it's something that justices should take into account?

>> i think so. it's certainly a natural and appropriate thing to think about your successor.

>> stevens ' comments came after the dean of the law school penned an op-ed in "the new york times" urging ruth bader ginsburg , the court 's most senior justice to retire before the november elections this year, ensuring that a democratically controlled administration could confirm that. but seemingly when touched on politics and urge older citizens to rise up in revolt. antonia scala told students while they ask tax, if it goes to a certain level, you should revolt. while a scalia -led insurrection is not something to lose sleep over. the political activity in scalia 's wife maureen is cause for concern. in june, the court will rule on the massachusetts 35-foot buffer zone , one that exists outside of abortion clinics. maureen scalia is a hitted pro-rights person who aims to dissuade people from undergoing abortion. and a counselor at the hope crisis pregnancy center. two organizations which would be directly affected by her husband's ruling. this apparent conflict of interest doesn't seem to bother justice scalia during january's oral argument. the question is, should it have and should he recuse himself now. joining me is law professor from george washington university , jonathan turley . professor turley, when you hear about maureen scalia and her activities as an anti-abortion activist, do you think this is grounds for or a reason that justice scalia should recuse himself from ruling on this case?

>> i think when you look at how the court has handled those types of conflicts in the past, alex, it's not. that we've had this come up repeatedly with the wife of justice thomas . also controversy involving justice alito . this court has not recused itself, except in fairly, clear, if not extreme cases. i actually think they should recuse themselves more. but with regard to the spousal issue, i think that many people feel that on its own is not necessarily a conflict. but, you know, the problem that we have often with the supreme court is that it has been very adamant that the usual set of judicial ethics rules do not apply to the justices . they've said since they're the supreme court , they can't be held in judgment by lower court judges on questions of judicial ethics. i've long disagreed with that. and i think the supreme court shows a dire need to be brought in conformity with lower courts on things like conflicts of interest.

>> what about, some folks will argue well, it's actually good to have justices who have an active and robust intellectual life either at home or elsewhere. because it helps them make these very important decisions. especially as the work of the supreme court has gotten political in an age when congress is basically self-blockaded into obscurity, legislatively speaking?

>> well, vie to say i'm also a big critic of justices going out and making these public appearances. justice scalia is notorious for maining a base. ruth bader ginsburg is subject to the same type of criticism. she speaks often to liberal groups. and there was a time when justices as a cultural touchstone did not make any type of public appearances, sort of a graduation speech. and what we're seeing is the time of sort of a silent justice. i think it's not a good thing. last week both scalia and ginsburg talked about the possibility of a ruling in the nsa surveillance controversy. and it really took my breath away. you know, these justices have to decide whether they want to pursue this type of celebrity status or whether they want to live a life on the court and allow as stevens did, his opinions to speak for him.

>> john, let me ask you, is this a result of i'm not going to take on celebrity cases but calls it celeb, but you're the expert here, that seem more overtly political. that seem to stir controversy on one or both sides of the aisle? i suppose it's a chicken or an egg scenario. but i mean, does that play a role in the justices seeking higher profile on the news media?

>> i think it's a combination of things, alex. one of them is this whole move towards media celebrity status. that the court has indeed become the focus of our political divisions . and we have these fights every time someone has the possibility of retirement. and i think that's beginning to corrupt the judgment of justices . that, you begin to believe your press reports. and you begin to sort of cultivate these bases. and you can imagine, the court itself is somewhat ensue lar. you live in a rather small environment. so there's obviously huge temptation to go throughout and meet these adoring crowds. but it also sends a very bad image out there for the supreme court , of justices that are throwing red meat to identificationological compatible groups.

>> let me ask you one more question, the open acknowledgementes that justices made to retire whether or not a democrat is in the eval office. is that just an acknowledgement of reality? or do you think it's a disturbing trend of the outright politicization of the supreme court , somebody who is supposed to be immune from politics?

>> i do think it's an acknowledgement -- a consideration has always been there. many justices want to see the court remain balanced. and he's brought in as a conservative, stevens . and you have to feel sorry for ginsburg, people are saying she would either pass away or retire in the last 25 years. it's really getting rather creepy to have all of these people focusing on ginsberg. she remains really quite sharp, you know. there's no reason why she needs to retire. there's no physical or mental residence. in fact, stevens himself could have stayed on the court . so i feel a little sorry for her because this has been going on for 20, 25 years. and people were saying, it's about time. it started soon before she got on the court .

>> we'll see what happens. george washington university 's jonathan turley . thanks.