a judge is in a unique position to contribute to the law, the legal system, and the administration of justice,” including through teaching . Associate Justices must receive prior approval from the Chief Justice to receive compensation for teaching; the Chief Justice must receive prior approval from the Court. See Resolution ¶ 3 (Jan. 18, 1991). Justices may not have outside earned income—including income from teaching—in excess of an annual cap established by statute and regulation. In calendar year 2023, that cap works out to less than 12 percent of a Justice’s pay. Compensation for writing a book is not subject to the cap.
Like lower court judges, Justices also engage in extrajudicial activities other than teaching, including speaking, writing, and lecturing on both law-related and non-legal subjects. In fact, the lower court canons encourage public engagement by judicial officers to avoid isolation from the society in which they live and to contribute to the public’s understanding of the law. But in deciding whether to speak before any group, a Justice should consider whether doing so would create an appearance of impropriety in the minds of reasonable members of the public. There is an appearance of impropriety when an unbiased and reasonable person who is aware of all relevant facts would doubt that the Justice could fairly discharge his or her duties. Except in unusual circumstances, no such appearance will be created when a Justice speaks before a group associated with an educational institution, a bar group, or a nonprofit group that does not regularly engage in advocacy or lobbying about issues that may be implicated in cases that come before the Court.
In regard to recusal, the Justice follow the same general principles and statutory standards as other federal judges, but the application of those principles can differ due to the unique institutional setting of the Court. In some instances the Justices’ recusal standards are more restrictive than those in the lower court Code or the statute—for example, concluding that recusal is appropriate where family members served as lead counsel below. A recusal consideration uniquely present for Justices is the impairment of a full court in the event that one or more members withdraws from a case. Lower courts can freely substitute one district or circuit judge for another. The Supreme Court consists of nine Members who always sit together. Thus, Justices have a duty to sit that precludes withdrawal from a case as a matter of convenience or simply to avoid controversy. See United States v. Will, 449 U.S. 200, 217 (1980) (28 U.S.C. § 455 does not alter the rule of necessity); ABA, Model Code of Judicial Conduct § 2.11 cmt. (“The rule of necessity may override the rule of disqualification.”). Individual Justices, rather than the Court, decide recusal issues. If the full Court or any subset of the Court were to review the recusal decisions of individual Justices, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.
Recusals are noted in the Court’s decisions, both at the certiorari and merits stages. In recent years, there have been approximately 200 recusals per year at the certiorari stage and a few at the merits stage as well. In many instances, the grounds for recusal will be obvious—for example, when recusal is due to a Justice’s prior employment as a circuit judge or in the Office of the Solicitor General. In some cases, public disclosure of the basis for recusal would be ill-advised. Examples include circumstances that might encourage strategic behavior by lawyers who may seek to prompt recusals in future cases. Where these concerns are not present, a Justice may provide a summary explanation of a recusal decision, e.g., “Justice X took no part in the consideration or decision of this petition. See Code of Conduct, Canon 3C(1)(c) (financial interest)” or “Justice Y took no part in the consideration or decision of this petition. See Code of Conduct, Canon 3C(1)(e) (prior government employment)”. A Justice also may provide an extended explanation for any
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