Supreme Court Notebook

House bill would set recusal rules for U.S. Supreme Court justices

BOSTON, MA -- A bill that would require U.S. Supreme Court justices to adhere to the same ethics rules as other federal judges has been introduced in the House.

The measure, H.R. 862, was introduced by Rep. Chris Murphy, D-Conn. and Rep. Anthony Weiner, D-N.Y. It would apply the Judicial Conference's Code of Conduct to Supreme Court justices and direct the Conference to establish enforcement mechanisms of the Code of Conduct for Supreme Court justices.

The bill would require the justices to publicly disclose the reasoning behind any recusal from hearing a case, as well as the reason for refusing to recuse after a motion is made for them to do so. It would also establish a process for reviewing decisions by justices who have refused to step aside from a case.

The lawmakers said they introduced the measure in response to recent reports of Justices Antonin Scalia and Clarence Thomas attending private events hosted by energy magnates and hefty political donors Charles and David Koch. The lawmakers assert that Koch Industries benefited from the Court's ruling in Citizens United v. FEC, which relaxed campaign finance limits on corporations.

"Just because it is the highest court in the land doesn't mean the Supreme Court is above the need for transparency or beyond sometimes having the appearance of conflict," Weiner said in a statement. "This bill begins to address these concerns."

Lawmakers seek probe of group that seeks probe of U.S. Supreme Court justices

BOSTON, MA -- Rep. Louie Gohmert wants the Justice Department to investigate Common Cause, the group that asked the Justice Department to investigate two Supreme Court justices for conflicts of interest based on the justices' association with a top conservative financier.

The Texas Republican called for the probe after a conservative website posted video footage of protesters making threatening comments about Justices Antonin Scalia and Clarence Thomas, Politico reports. One demonstrator said of Thomas, the only black justice on the Court: "What do we do with him? String him up. And his wife, too. Let's get rid of Ginny."

Gohmert wants Attorney General Eric Holder to investigate whether the group should lose its nonprofit status.

It is unclear whether the protesters were members of Common Cause, and the group has condemned the demonstrations.

Rep. Steve King, an Iowa Republican, joined Gohmert in blasting the group. King accused Common Cause of conducting a smear campaign against Thomas, who, like Scalia, attended private events hosted by billionaire GOP donors Charles and David Koch.

"This is an organized attempt of media lynching of Justice Thomas," King said.

Drug rehabilitation can be considered in resentencing, rules U.S. Supreme Court

BOSTON, MA -- A defendant's completion of a drug rehabilitation program may be a consideration in reducing his term of imprisonment when he was resentenced post-Booker, the U.S. Supreme Court has ruled in reversing a decision from the 8th Circuit.

The defendant pleading guilty to conspiracy to distribute methamphetamine and was sentenced under the U.S. Sentencing Guidelines to 24 months' imprisonment, a nearly 75 percent downward departure from the guidelines range, based in part on substantial assistance he had provided to law enforcement.

The 8th Circuit reversed and remanded for resentencing in light of U.S. v. Booker (543 U.S. 220), which rendered the guidelines advisory.

On remand, the district court again sentenced the defendant to 24 months, granting a 40 percent downward departure based on his substantial assistance and a further downward variance based on his successful completion of a 500-hour drug rehabilitation program.

The 8th Circuit again reversed, concluding that the defendant's post-sentence rehabilitation was an impermissible factor upon which to base a downward variance on resentencing. That decision ultimately resulted in the defendant receiving a 65-month prison term.

The Supreme Court agreed to review the case. It concluded that a factor such as drug rehabilitation fell within the broad range of sentencing factors that a district judge may consider under the now-advisory guidelines.

The Court observed that 18 U.S.C. §3661 permits "[n]o limitation ... on the information concerning the background, character, and conduct" of a defendant that a district court may consider in determining an appropriate sentence.

"We have recognized that 'the broad language of §3661' does not provide 'any basis for the courts to invent a blanket prohibition against considering certain types of evidence at sentencing.' A categorical bar on the consideration of post-sentencing rehabilitation evidence would directly contravene Congress' expressed intent in §3661," the Court said.

Justice Sonia Sotomayor delivered the majority opinion. Justices Stephen Breyer filed an opinion concurring in part and concurring in the judgment. Justice Samuel Alito filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. Justice Clarence Thomas filed a dissenting opinion. Justice Elena Kagan took no part in the case.

U.S. Supreme Court. Pepper v. U.S., No. 09-6822. March 2, 2011.

Published: Tue, Mar 8, 2011