Don't mistake Gorsuch's 11th-hour recusal for a 'sudden embrace of ethics': writer

Right-wing Supreme Court Justice Neil Gorsuch recused himself from an upcoming environmental case this week, but did so without explaining his reasoning — a fact not lost on a Slate writer, who cautioned readers to avoid the temptation of viewing his move as an embrace of ethics.

Arguments are scheduled for next week in the case Seven County Infrastructure Coalition v. Eagle County. On Wednesday, a clerk delivered a letter that said Gorsuch determined "he will not continue to participate in this case," "consistent with the new ethics code.

Writer Mark Joseph Stern noted the timing of Gorsuch's move — which came just a day after The New York Times reported Gorsuch pushed against "meaningful" ethics reforms and "successfully lobbied to render the project toothless."

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"His opposition to an enforceable code ensured that the task of holding the justices to their word would not be a transparent, consistent, or orderly process, but would instead fall to the interest groups and lawmakers willing to launch a public shaming campaign. No jurist emerges from such a campaign looking good, even if they wind up making the right choice, as Gorsuch did here. It is the worst possible way to do ethics, guaranteed by the justice’s refusal to set clear rules of the road," wrote Stern.

He added that Gorsuch's reasoning for refusing himself was obvious — a billionaire who stands to benefit from a deregulation decision urged George W. Bush’s administration to appoint Gorsuch. Indeed, Gorsuch recused himself dozens of cases involving Anschutz and his companies while serving on the lower court.

"The argument for his recusal is certainly strong, but it is not ironclad," said Stern, who noted the billionaire's company only filed an amicus brief, which the court's new code states does not require a recusal.

"If the code were enforceable—by, say, a panel of lower court judges, as Justice Elena Kagan has proposed—Gorsuch could have sought guidance on a potential recusal," said Stern.

But Gorsuch himself blocked the creation of such an enforcement mechanism.

"No one should mistake Gorsuch’s eleventh-hour recusal for a sudden embrace of ethics. If it were, he surely would have stated the reason for his disqualification, as the justices’ own rules encourage them to do," Stern said.